naturally arises, whether the law, granting the exclusive privilege to an inventor, is not unjust? whether it does not wrong other persons, by depriving them of their natural rights? It undoubtedly does take away rights which they would otherwise have, but it does not thence follow that it is unjust. It is the effect of many laws to take away rights which men would enjoy, if each one existed in a state of entire independence of all others, if such a condition were possible; but it does not thence follow that the laws are injurious to any one, since they give more than an equivalent for what they take away. The rights taken from the members of the community generally, are, first, that of discovering or inventing the same thing, independently of the prior invention, and that of using and vending it for a limited time; and second, the right of profiting by the prior invention or discovery of another, for a limited time. This last right is evidently subject to some qualification, for it is certainly just that the inventor should have a greater advantage of his invention than others, whereas if he is exposed to a universal competition in the manufacture and use of his invention, the probability is, that others will turn it to better account than he can himself, since the chances are very great that some one may possess greater advantages for prosecuting the manufacture and selling the article. Without some assistance from the legislature, therefore, he will be deprived of what he is equitably entitled to. If it be then admitted that he is equitably entitled to the exclusive use and sale for a time, against all others who do not make use of the same invention independently of him, and without deriving any hint or facility from his prior ingenuity or experiments, we have sufficient ground for a law giving him the exclusive right against all others for a time, since it is a matter of too much difficulty and intricacy of proof, to distinguish the cases of others who have made the same invention without any assistance from his ingenuity, from those of mere imitations. The law, in order to be practicable and convenient to be administered, must give the exclusive right. To this point the law is only an equitable regulation, which does not propose to deprive others of any right in behalf of inventors, but incidentally deprives them of a right, which they would otherwise have, because it is necessary for the purpose of doing justice to in ventors. The granting of patents is not, accordingly, a mere matter of favor, as it has sometimes been represented by judges,' but an equitable and just claim upon the government, as much so as the claim to protection of individual industry and private property. "The "Although," says Mr. Justice Bayley, "the thing may be new in every particular, it is in the judgment of the Crown whether it will or will not, as a matter of favor, make the grant." Brenton v. Hawkes, 4 B. & Ald. 552. patentee," says Lord Eldon, "is a purchaser from the public, being bound to communicate his secret to the public at the expiration of his patent."2 This right is recognised in very strong and absolute terms in the decree of the French National Assembly. The language is, "Every new idea, of which the manifestation or development might be useful to society, appertains originally to the person who has conceived it; and not to regard a discovery in industry as the property of the discoverer, would be to attack the rights of man in their essence." This language is, however, too comprehensive, as we have already suggested, that the granting of a perpetual exclusive right to an invention, would be a material retrenchment of the rights of others, and so the National Assembly doubtless considered it; for after this preamble they proceed, not to grant such a perpetual privilege, but only a temporary monopoly. M. Renouard remarks, that " an inventor has not, independently of positive laws, any exclusive property in his invention, any longer than he keeps it secret. That is, others have a right to make the same discovery themselves, independently of him, or to avail themselves of the inventor's disclosure of his secret, and this conflicting right of others, intercepts, and in 2 Williams v. Williams, 3 Meriv. 157. * January 7th, 1791. Renouard, p. 423. Ed. of 1825. *P. 32, c. 2, s. 1. many cases in fact entirely defeats, any advantage to the inventor from a right universally admitted; for he often cannot use his invention, and at the same time keep it secret, and thus the very attempt to obtain the benefit of his discovery, forfeits it. This strengthens his claim on society, for it is precisely the case of an individual too weak to protect himself, and who, therefore, asks the protection of the community. If he is able to keep his secret, and yet turn it to profitable account, his case is that of the head of a powerful party or clan, who is able to defend and protect himself without the aid of a superior power. Such an inventor is in a condition to make his own terms with the community, for the surrender of his secret; and when the terms proposed by the laws are not satisfactory to him, he may reject them. This is, however, true of but very few inventors. They can, in general, at most only lock up their secret in their own breasts, not being able to turn it to any advantage to themselves, except by means of a law enacted in their behalf. Their claim on the community, therefore, for interposition in their behalf, is exceedingly strong; they are entitled to assistance from the combined authority of the community, and it is essentially necessary to them. Though property in a discovery, therefore, like that. in land, originates in and is created by legislation, the right to such property exists to an imperfect degree, independently of the positive laws. In this view Mr. Rawle remarks, that upon the provisions of the constitution of the United States on this subject, that it was not intended thereby to create rights, but merely to regulate those already existing." The inventor has. a right to keep his secret, and if he discloses it he has a just claim to remuneration and reward, according to the amount of his expenditure, and the importance of his improvement. "Many people form an erroneous notion of the kind of merit, and the degree of application, requisite for making improvements in manufactures. They seem to imagine that most of those improvements are lucky hits, which it is only surprising that nobody ever made before; and so they are unwilling to bestow rewards with liberality on such as they conceive owe their success to fortunate accident, rather than to merit. Yet a little reflection may show how erroneous this opinion is. The great mass of useful inventions is made up, and must be, not of what is altogether new, but of improvements in what is already practised. Such improvements, it is also to be remembered, are more eagerly sought after, and by a greater number of competitors, when manufactures have so far advanced as to employ many hands in a single branch. Since then it must be a very limited branch that employs only a thousand persons; how is 5 Rawle on the Constitution, c. 9, p. 102. Ed. of 1825. |