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and as such, are patentable. Likewise, an improvement of any one of such four classes of things, if it involves the element of invention, is patentable.
But in all such cases, there must actually have been invention. The product must have been the result of the exercise of the inventive faculties. While this much is clear, on the decisions construing the statute, it is equally clear that no precise rule can be laid down for determining, in all cases, what amounts to invention, and what does not, and reasonable minds may easily differ on the question. In an opinion by the Supreme Court, it was said, “The truth is the word cannot be defined in such manner as to afford any substantial aid in determining whether a particular device involves an exercise of the inventive faculty or not. In a given case we may be able to say that there is present invention of a very high order. In another we can see that there is lacking that impalpable something which distinguishes invention from simple mechanical skill. Courts, adopting fixed principles as a guide, have by a process of exclusion determined that certain variations in old devices do or do not involve invention; but whether the variation relied upon in a particular case is anything more than ordinary mechanical skill is a question which cannot be answered by applying the test of any general definition” (10).
§ 14. What is not invention. It is not an invention to produce a device which any skilful mechanic could produce whenever required. In a leading case, holding a patent for such a device void, the Supreme Court has said:
(10) McClain v. Ortmayer, 141 U. S. 427.
“The process of development in manufactures creates a constant demand for new appliances, which the skill of ordinary head-workmen and engineers is generally adequate to devise, and which, indeed, are the natural and proper outgrowth of such development. . . . To grant to a single party a monopoly of every slight advance made, except where the exercise of invention, somewhat above ordinary mechanical or engineering skill, is distinctly shown, is unjust in principle and injurious in its consequences.
The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge, and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any
skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing waves of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith” (11).
(11) Atlantic Works v. Brady, 107 U. S. 199.
Thus, merely broadening the flange of a mail bag and increasing the number of rivets used in attaching it to the bag, does not constitute invention (12); nor making the base of a brass or other soft metal cartridge of steel or other hard metal so that it can be used for repeated discharges without injury to the vent hole in its center (13); nor forming the points of a staple by cutting diagonally from the same side of each leg, for the purpose of causing both points to bend in the same direction when the staple is driven, staples having been previously made with diagonal cuts from the outside of each leg for the purpose of causing the points to come together (14); nor placing a box over a sewing machine when not in use to protect it from dust (15); nor applying a screw to the cogs in the periphery of a quadrant on a rudder head, for the purpose of moving and holding the rudder in its various positions (16); nor securing the door of a time lock with a key, and providing such door with an aperture through which the clock can be wound (17); nor weighting the knife bar of a roll-paper cutter, so as to obviate the necessity of pressing it down by hand when cutting off a sheet of paper (18); nor placing two sheets of fly paper together with their sticky surfaces face to face, for convenience in packing and handling, etc. (19); nor
(12) Thomson v. U. S., 27 Ct. Cl. 61. (13) In re Maynard, Fed. Cas. No. 9352. (14) Double-Pointed Tack Co. v. Two Rivers Mfg. Co., 109 U. S. 117. (15) Ross v. Wolfinger, Fed. Cas. No 12081. (16) Cochrane v. Waterman, Fed. Cas. No. 2929. (17) Yale Lock Mfg. Co. v. Norwich Natl. Bank, 6 Fed. 377. (18) Am. Roll Paper Co. v. Weston, 59 Fed. 147. (19) Andrews v. Thum, 67 Fed. 911,
lengthening the legs of a stove to allow of a lamp being placed under it (20).
In general, it may be said also, that there is no patentable invention in merely changing the form of a machine (unless a particular form is necessary as the means for accomplishing a particular effect), or of some unessential parts, or in using known equivalent powers, not essentially varying the machine or its mode of operation or organization-for example, changing the angularity of two shafts which are operatively connected by gearing, and substituting one form of gearing for another, as spur gears for bevel gears, or vice versa; nor in changing the location or position of parts (unless such change brings into existence a new combination of devices, operating by reason of such new combination to produce a new and useful result)—for example, rearranging certain devices upon a lantern, by means of which it could be separated and the globe taken out from above instead of from below, was not invention (21); nor was changing the position of the raker's seat upon a harvester so that the raker could face the falling grain (22). There is ordinarily no invention in a substitution of materials, as one metal for another, or porcelain for glass, or rubber for wood. But if such substitution effects a new mode of operation of the device or machine, or produces a new and useful result which is different in kind, and not merely in degree, from the result produced by the old material, such substitution is patentableas where wooden blocks, resting in oil re
(20) (21) (22)
Couse v. Johnson, Fed. Cas. No. 3288.
ceptacles, were substituted for iron blocks for supporting the rim of a saw carriage. The wooden blocks, by capillarity, supplied oil to the bearing surfaces, whereas, in the case of the iron blocks, it was necessary to supply oil by an independent means (23).
§ 15. Mechanical equivalents. Two devices which perform the same function in substantially the same way, and accomplish substantially the same result, are known in the patent law as mechanical equivalents (24). Familiar examples are: a crank, and an eccentric or a cam, when used to transmit rotary into reciprocal rectilinear motion; a chain and sprockets, and a shaft and pairs of bevel gears; a weight and a spring, for many purposes; and a rotative screw and non-rotative nut, and a non-rotative screw and rotative nut, for the purpose of imparting endwise movement to the screw; it is not invention to substitute one of these for another (25).
But, in a case where the prior art showed a fly-book for anglers' fly-hooks, consisting of a page with catches at one margin to hold the hooks, and a series of overlapping flat springs at the opposite margin for holding the snells, it was held invention to substitute for the flat springs, a coiled spring, between the convolutions of which the snells could be held (26), the court saying, in effect, that for such purpose the coiled spring possessed properties which the flat springs did not possess, and that
(23) Perkins v. Interior Lumber Co., 51 Fed. 286, at 291. (24) Union, etc. Co. v. Murphy, 97 U. S. 120. See also $ 50, below. (25) Crouch v. Roemer, 103 U. S. 797. (26) Bray v. U. S. Net & Twine Co., 70 Fed. 1006.