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invention, art, or discovery, pursuant to this act, shall make oath, or affirmation, before such patent shall be granted, that such invention, art, or discovery,
hath not, to the best of his knowledge or belief, been known or used either in this or any other foreign country.” This form of the oath differs from that taken by a citizen, but the difference is only in form, for both are “placed substantially on the same ground. In either case if the invention was known or used before it was patented, the patent is void. In both cases the right must be tested by the same
Sec. VIII.-PERSONAL DISABILITIES.
A bankrupt is not disqualified from taking out a patent during the pendency of the proceedings in bankruptcy, though M. Renouardie says that by the French law the patent, if taken out before his discharge, the profits of it will enure to his creditors. The law is not so in England; there no acquisition subsequent to the assignment of the bankrupt's effects by the commissioners of bankruptcy, will go to the benefit of his creditors under the assignment. A patent bearing date before the assignment by the commissioners will pass by such assignment. The
" Per M'Lean, J. Shaw v. Cooper, 7 Pet. R. S. C. Rep. 292. 16 P. 312. c. 8. s. 2.
construction of the State bankrupt laws in the United States, in regard to this question, would probably be similar to that adopted in England, as far as the proceedings are analogous to those under the English law.
M. Renouard” says that persons civilly dead, that is, who have abjured, or who, by way of punishment, have been deprived of the rights of civil society, may, notwithstanding such disability, apply for and take out a patent; though they could not pursue any person for infringing it, or otherwise derive any benefit from contracts made respecting the use of it. But the opinion of M. Renouard as to their capacity to take out patents, seems to be subject to some doubt, since he assumes that such persons are by the laws of France incapable of contracting, or asserting rights of property. It should seem to follow that they could not receive valid grants, and if so, they cannot be patentees, since a patentee is a grantee, and a party to a contract. But in forming an opinion on this question, we should bear in mind that the phrase civilly dead does not, in all countries and in all cases, import precisely the same disabilities. If the laws of any country be that a person civilly dead cannot take and hold any property, but that all his possessions go to his heirs, by the very fact of his civil disability, and his estate is administered upon as that of a person deceased, his right to a patent would stand upon the same footing; and his representatives would take it out in his stead where the invention was made before his disability was incurred. But if he makes the invention subsequently to his disability being incurred, there does not appear to be any way for him to avail himself of the advantages of it unless the act of Congress authorizing the granting of patents should be construed to supersede the State law by which he should be declared to be civilly dead. These questions remain as subjects of future legislation or judicial decision.
11 P. 311, c. 8. 8. 2.
Nothing prevents a patent being taken out by a minor or married woman ; though in the latter case the property in the patent would belong, as a matter of course, to the husband. But in the former case it does not appear but that the fruits of the minor's invention merely, independently of his labor, would be similar to his finding a treasure not claimed by any owner, or to his inheriting property by descent. In the last case, what descends to him is his separate property, and from analogy it is inferred that in the two former cases his rights would be the same.
Subjects of Patents.
Sec. 1. Kinds of Subjects Patentable.
position, Reduction to Practice.
Insufficiency of the Invention. Ornaments. 13. Legality. 14. Usefulness. 15. Vendibility. 16. Novelty, Priority. 17. Previous Publication. 18. Imported Inventions. 19. Delay for Experiments. Dedication to the
Public. Sect. I.-KINDS OF SUBJECTS PATENTABLE. We are now brought to a very difficult branch of the law of patents, the inquiry being as to what kinds of new inventions are patentable. Nothing is patentable but an invention; but not every invention is so. After the adoption of the French patent law, patents were taken out for systems of finance ;' but these were declared not to be within the class of inventions comprehended under the law. To decide this question, our first resort is to the words of the law; or in the British statute, the word; for the kinds of subjects intended by that law, are expressed by the single word manufacture; and, as we shall see, the meaning and extent of this word, in reference to the subject in hand, is restricted, in the first place, by express provisions in the law, and then again by construction, and yet a very extensive signification is given to it. The act of Congress of 1793 gives a more full and definite description of patentable subjects; the words are, “any new and useful art, machine, manufacture, or composition of matter.” This law is intended to express more fully and precisely, the practical construction which had already been given to the fifth and sixth sections of the British act of monopolies, and is thus at the same time, the law of the United States, and an exposition of that of England. The language of the French law is, perhaps, broader than either that of the English or American law, the expression in that law being, “ every invention or discovery in any kind of