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his own property in it. It is not only, not always the case; but, on the contrary, the inventor would most frequently retain his property; for most persons are employed to practise arts already known, not to invent new ones. We must limit the doctrine strictly to the case put by Mr. Justice Bayley, of the employment of a person for the purpose of superintending and directing the processes, and who uses them without reservation for the benefit of his employer.
Sec. IV.—THE ORIGINAL INVENTOR.
To entitle a party to a patent he must not only be an inventor, but also the original inventor; that is, the first inventor who reduces the invention to
practice. Though one exception to this rule is illustrated by the case of Dolland's patent for an improvement in reflecting telescopes, for Doctor Hall had first made the invention and reduced it to practice in his closet, and kept it secret, and yet Dolland's patent for the subsequent invention was held to be valid; for he was the original inventor of the improvement to all practical purposes, as far as the public was concerned. Mr. Justice Washington is said to have held, in an action for an infringement of a patent, that it was no defence that the plaintiff was not the original projector of the improvement if the patent was taken out with the knowledge and assent of the original projector, and not in fraud of his right. So the same judge is reported to have intimated, in another case, that where an invention was joint, and it was agreed by two (verbally) to take out a joint patent, and one, in violation of this agreement, took out the patent in his own name separately, he would be the trustee of the other to the amount of his moiety. It is not easy to reconcile this doctrine with the language of the statute requiring the patentee to make oath that he is the true inventor ; and it seems to conflict with the doctrine laid down by Mr. Justice Story. Certainly if the terms original projector be used in their ordinary sense, and such projector communicates his project to another, this latter cannot be considered the original inventor.
7 Dall. Pat. Cas. 170. 2 H. Bl. 469.
The subject of the originality of the invention and also that of simultaneous inventions by different persons independently of each other, will be considered more particularly in treating of the novelty of inventions. It is sufficient to state generally, here, that where an inventor has applied for a patent, his claim will not be superseded by that of any other unless that other can show a previous invention. It will not be enough for him to show a simultaneous invention.
8 Dixon v. Mayor, C.C.of U.S. Penn. April, 1821. Coxe's Dig. 532.
Rentgen v. Kanowrs & Grant, 1 Wash. C. C. R. 168. 1" Stearns v. Barrett, 1 Mason, 153; Barrett v. Hall, 1 Mason, 447. Sec. V.-ASSIGNEE BY ASSIGNMENT ANTERIOR TO
It was ruled by Mr. Justice Washington, in a case for an infringement of a patent, 'not to be a good defence to prove that another person was the inventor, if it appeared also in evidence that the patent was taken out by the plaintiff with the consent of that other." A short abstract of the point as above stated, is the only report of this case, from which it does not appear whether the point ruled was one merely of evidence, namely, that the consent of the person in question to the plaintiff's taking out the patent, rebutted the testimony that such other was the inventor ; or, that another person might take out a patent in his own name for an invention not exclusively his own, with the consent of the real inventor, which would be equivalent to the patent being taken out by the assignee in case of an assignment before the patent is issued. The latter is the more obvious construction of the report as Mr. Coxe gives the
And this doctrine is countenanced by an intimation of the same judge in another case."2 So in another case'it is implied that the patent was taken out by the assignees. But whatever may have been held or intimated or implied to the contrary on this subject, it seems, from the whole language of the act of Congress of 1793, especially the form of the oath, and from the cases already cited,4 and also from the common form of the patent itself, that it can be taken out only on the application and oath and in the name of the inventor himself, or the inventors themselves, if more than one, except in the case of the death of an inventor, as hereafter mentioned. The effect of an assignment previously to the grant of the patent, therefore, is that on the patent being issued on the application and oath and in the name of the inventor, and on the recording of the assignment in the office of the secretary of state, the assignee, thereafter, under the fourth section of the act of 1793, stands in the place of the original inventor, both as to right and responsibility.
11 Dixon v. 531.
Mayor, C. C. U. S. Penn. April, 1821.
1 Reulgen v. Kanowrs & Grant, 1 Wash. C. C. R. 168. 13 Gray & Osgood v. James and others, 1 Pet.C, C. R. 481, 482.
Sec. VI.-HEIRS OR REPRESENTATIVES OF THE PÁ
By the act of April 17th, 1800, it is provided that in case of the decease of the inventor before taking out a patent, his personal representatives may take it out; the oath being “so varied as to be applicable to them."
14 Stearns v. Barrett, 1 Mason, 153; and Barrett v. Hall, 1 Mason, 447.
By the act of 1793, the party applying for a patent, in order to be entitled to the grant of one, must not only have been the original sole inventor, but must also have been a citizen of the United States. The expression of the first section of that act is “That when any person, or persons, being a citizen, or citizens of the United States, shall allege that he or they have invented,” &c. the secretary may grant letters patent. This was a departure from the practice under both the English and French laws on the same subject, by both of which patents are granted to foreigners as well as to English and French subjects. The act of Congress of 1790, which was superseded and repealed by that of 1793, like the English and French laws, made no distinction between citizens and foreigners. After the right of taking out a patent had been confined to citizens exclusively for seven years, the act of Congress of April 17th, 1800, was passed, by which the privilege was extended to resident aliens. By that act the privileges granted to citizens by the former “are extended and given to all aliens, who at the time of petitioning, in the manner prescribed by said act, shall have resided for two years within the United States; provided that every person petitioning for a patent for any