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in general are permitted to take out patents. And in the first place the patentee must be the inventor. Mr. Godson remarks, that “ the character of an inventor may be obtained by a person in three ways, by bringing with him and publishing to his countrymen the productions of the genius of foreigners ; by publishing what others as well as himself have found out at home; or by publishing what he himself has discovered.”! He does not mean that the publisher of another's invention is entitled to a patent for it, but that among several who simultaneously discover the same thing, the first who applies for a patent, and publishes it, is entitled to the monopoly. Two descriptions of persons then are entitled to patents, namely, the inventors of a thing, and the introducers of what others have invented abroad, but which was before unknown in England. The doctrine of the English jurisprudence as to the right of importers of an art or machine, has, as we have seen, been expressly incorporated into the French law.

The law of the United States differs from that of England and France in this particular, by limiting the right to take out a patent, to the original inventor; it does not give the privilege to a person who merely introduces a foreign invention. The statute of 1793 gives the privilege to the inventor, and requires that he shall make oath that he verily believes that he is the “ true inventor," which words have been construed not to be applicable to the importer of another's discovery ; though the expressions do not exclude such a claimant in any stronger terms than the English statute of 2 James I., the fifth section of which excepts from the general prohibition of monopolies, those theretofore granted of the “ sole working or making of any manner of new manufacture within this realm, to the first and true inventor or inventors.And the sixth section, which provides for the future grant of monopolies, is in precisely the same words in this respect. As it had been customary, before the passage of that act, to grant patents to the first introducers of foreign inventions into England, who were accordingly placed upon the same footing as inventors in respect to this privilege, when the statute made an exception of patents for inventions from the general suppression of monopolies, it was very naturally construed to except those inventions introduced from abroad as others, and the words of the sixth section, describing the persons entitled to future grants of patents, being the same as those of the fifth section in relation to the then existing patents, the same construction was given to them. This construction has never been given to the American law of 1793. It is an essential qualification for the claimant for a patent in the United States that he should be the true inventor.

'Ch. 2. p. 59.

well as


A joint patent cannot be sustained upon a sole invention of either of the patentees, for the patent act gives no right to a patent except to the inventor; and requires an oath from the party who claims a patent, that he is the true inventor.? Joint inventors must therefore be joined in the patent,


If the invention is suggested by another, the person to whom the suggestion is made, though he proceed to reduce it to practice, is not the inventor within the meaning of the statute. This proposition might, however, be limited to the case of a suggestion of the specific process or machine. A general theoretical suggestion that a steam vessel might be made to navigate the air or water, or that paper could be made in a continued sheet on a cylinder, would not be such a suggestion of the invention as would preclude the person to whom it should be made, from taking out a patent for a particular process or of specific machinery for effecting the result suggested. But if the specific process is pointed out, the person to whom it is so pointed out, cannot after

? Barrett v. Hall, 1 Mason, 473. Stearns v. Barrett, 1 Mason, 153.

wards be the inventor of such process or machine. In an action by a patentee, for an infringement of a patent for a bleaching liquor, a chemist deposed, that previously to the grant of the patent, he had had frequent conversations with the patentee, on the means of improving bleaching liquor, and that in one of them, he had suggested to the patentee, that he would probably obtain his end by keeping the lime water constantly agitated ; and it appeared that this was indispensable in the process. Lord Ellenborough thereupon nonsuited the plaintiff, on the ground that it was not his invention.3 So in an action for an infringement of a patent for an improved method of making hats, a witness, who was one of the plaintiff's men, stated that he invented the improvement which was the subject of the patent, while employed in the workshop of the plaintiff. The plaintiff was thereupon nonsuited.

Mr. Justice Bayley throws out the suggestion that if the witness had been employed by the plaintiff for the express purpose of devising improvements, the construction might have been otherwise.5 This was supposing an assignment of the invention, for it can make no difference in principle whether the consideration paid for the invention, be a specific price or a salary. This would not, how

Tenant's case, Dav. Patent Cas. 429.
* Per Holroyd J. Barber v. Walduck, cited 1 Car & P. 558.
• Bloxam v. Elsee, 1 Car. & P. 558. 1 R. & M. 187.

ever, make the employer the inventor, though the real inventor would thereby, lose the property in his invention. And this position is illustrated by another case, in which a head colorman, employed to mix colors for calico printing, had, during his service, kept a book in which were entered the processes for mixing the colors, many of which were of his own invention. Mr. Justice Chambre said, the master has a right to something beside the mere manual labor of the servant in the mixing of the colors; and though the servant invents them, yet they are to be used for his master's benefit, and he cannot carry on his trade without his book. And it was held accordingly that on discharging the colorman, his employer was entitled to retain the book and use the mixtures. This case does not give the right of taking out a patent to the employer, but it proceeds upon the doctrine that the inventor, being employed for the purpose of compounding these mixtures, and having entered them in the book, thereby lost his property in them as an invention. The case can, however, hardly be shaped into a general doctrine, it is a matter of construction of the particular circumstances, whether the inventor, by the nature of his employment, or by his contract, either assigns his invention to his employer, or at least divests himself of

• Makepeace v. Jackson, 4 Taunt 770.

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