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public are benefited by them, yet on striking the balance upon this subject, I think great oppression is practised on inferior mechanics, by those who are more opulent.” This is stepping aside a little from the judicial, and assuming the legislative functions, for the favor to be extended to patents is properly a matter to be determined by the law, not by the discretion of the judge, or his opinion as to the effect of the law on inferior mechanics. The operation of the patent law of England to the prejudice of small mechanics, if it in fact exist, is owing, in part, to the very strictness and illiberality of construction, which Lord Kenyon professes to favor, since it tends to render the validity of patents so precarious, that only men of ample fortune can afford to run the hazard of speculating in this species of property; especially since the practice mentioned by Lord Brougham has prevailed, who states that it not unfrequently happens that those who are interested in quashing a patent make up a stock purse, to defray, at the common charge, the expenses of defending those who infringe the patent, against suits by the patentee, who is liable thus to be ruined by the expense of law suits, even though his patent may be adjudged to be valid. The enormous tax and charges upon patentees in England, have had the same tendency. These two causes have gone far towards defeating the objects of the exception of inventions from the prohibition put upon monopolies in general, by the statute of James I. Lord Chief Justice Abbot, since Lord Tenterden, admits that the patents have been too illiberally construed. And in more recent cases the principles and spirit of the English jurisprudence on this subject, have been much ameliorated and made more conformable to the motives and policy of the patent laws. In a more recent trial, before Mr. Justice Patteson, reported by Mr. Godson, the instructions to the jury breathe the true spirit of the law.
*8. T. R. 98. See also opinion of Dallas J. in Hill v, Thompson, 2 J. B. Moore, 458.
*Speech in the House of Lords, June, 1835.
In the United States the jurisprudence on this branch of law has in general been marked by more broad and liberal views. Its leading principles cannot be better expressed than in the language used by Mr. Justice Story, in the case of Ames's papermaking machine. He says, “ Patents for inventions are not to be treated as mere monopolies, odious in the eyes of the law, and therefore not to be favored, but on the contrary to be construed with the utmost rigor as strictissimi juris." The Constitution of the United States, in giving authority to Congress to grant such patents for a limited period, declares the
See Evidence taken before the Committee of the House of Commons, 1832, Westminster Review, No. 44, April, 1835, on this subject.
• The King v. Wheeler. 2 B. & Ald. 345.
object to be to promote the progress of science and the useful arts, an object as truly national and meritorious, and well founded in public policy, as any that can possibly be the object of national protection. Hence it has always been the course of the American courts (as it has latterly been that of the English courts also) to construe these patents fairly and liberally, and not to subject them to any over-nice and critical refinements. The object is to ascertain what, from the fair scope of the words, is the nature and extent of the invention claimed by the party, and when the nature and extent of the claim is apparent, not to fritter away his rights upon formal and subtle objections of a purely technical character.'
The writer in the Westminster Review, already quoted, goes into an argument and cites examples, to prove that the illiberal and captious jurisprudence on this branch of law, is owing to the incompetency of the judges to understand the merits of the cases, and a consequent inclination to put the decision upon legal technical points, with which they were more conversant. He does not proceed to the proposal of any remedy, and accordingly the argument and citations stand as merely a charge of incompetence or want of fidelity on the part of the judges ; and of these the reader is left to infer the former ; the latter being indeed totally destitute of prétence, for no one
? Ames v. Howard, C. C. U. S. Mass. Oct. 1833. * Westm. Rev. No. 44. April, 1835. p. 251, 252. Foster's Am. Ed.
at all acquainted with the history of English jurisprudence for a long series of years, will for a moment think of drawing in question the general integrity and laborious fidelity of the English judges, for in these respects the judges of no country stand above them. Still on this subject it is admitted that at least very many of them have fallen into a narrow and inadequate system of jurisprudence.' The fair inference, however, is not, as the writer seems to insinuate, that jurisconsults by profession are not suitable judges in cases of patents. The same objections would lie against professed jurisconsults as advocates, yet no patentee, having a controversy on the subject of his patent, doubts being able to find an advocate capable of understanding his invention. The judges are not less likely to be able to understand the principles of an invention than an advocate. It would evidently be quite impracticable to procure judges or even jurymen, who have actually worked at or practised all the innumerable trades and professions by which civilized society is diversified, nor would it be desirable were it practicable. It is then quite nugatory to object that judges have not practical experience in any trade to which any particular patent relates. It is enough that they understand the law of patents. Were tradesmen to be appointed judges, any one would understand but one trade, when the cases arising on patents relate to a thousand; and then the still stronger objection would be, that he would not understand the law of that particular trade. The only remedy for the inconvenience mentioned, if it indeed be one, would be the selecting of special juries. This is the conclusion to which the remarks of the writer just referred to, would tend, though he does not state it specifically. Whether this would be expedient it is not the place here to discuss, the only object at present being to show that no amelioration of the jurisprudence on the subject of patents, could be expected from any different mode of constituting the judicial tribunals.
What Persons are entitled to Patents, and capable
of taking them out.
Sec. 1. Mere Introducers of an Art or Machine.
2. Joint Patentees.
Sec. I.MERE INTRODUCER OF AN ART OR MACHINE. We are next to inquire what party is entitled to a patent for any particular invention, and what persons