no value whatever by any person, excepting the inventor himself, and so other persons do not regard his exclusive privilege to be any interference with their pursuits or interests. This is, in fact, the case with many patents; and, in all these instances, there is no motive for any requisition or regulation on the subject.

And, finally, in still another case, a sale may not be practicable, though the invention may be useful and valuable, merely because it is not well understood by other persons than the inventor, or because no one, who has the proper means and facilities for putting it into actual operation, has made it a subject of his attention.

There are reasons why the law does not, and should not, either expressly or by construction, require that the invention, or its products, of which the privilege of exclusive sale is granted, shall be sold or offered for sale. It may be asked then, whether there ought not to be some provision against the perverseness of a patentee, who should willingly sacrifice his own interest for the satisfaction of acting the dog in the manger, and enjoy his exclusive privilege, by observing how much the public is incommoded, and how great a benefit it is in his power to withhold from them? Certainly not; for this is an inconvenience and deprivation to which the community is exposed in another case, namely, that of an artist who is able, by his superior genius and skill,

to produce the most admirable work, but who, from indolence, or some other vice, or, as sometimes happens, from mere waywardness, neglects to make use of the exclusive privilege conferred by his superior genius and skill. His privilege differs, at the first view, from that of a patentee, inasmuch as that of the latter is one of express grant from the government; but this difference will not be so material, on consideration, as it might at first view appear, since the grant is made, not like that of a branch of foreign trade, in consideration that it is to be used during the existence of the privilege, but in consideration that the patentee has given a specification whereby the public may have the benefit of his invention at the expiration of his privilege. During the privilege, therefore, all the conditions having been complied with, it stands on the same ground as any other private right, as that of property, or of using one's industry, and so should be subject to the same rules of legislation and regulation, and no others. In regard to all kinds of private rights, the community is affected by the good or bad use of them; but in this, it is necessary to rest, in some degree, upon individual discretion, since it is impossible to give directions for the use of all individual rights, in all respects, and one universal exception is made to the expediency of any legislative regulation, namely, when the real and obvious interest of the individual is coincident with that of the public.

In such cases, the interest of the community is generally left free to be promoted or prejudiced, according as the individual has or has not the good sense to make the use of his rights, that his own interest, properly understood, would dictate.

If, then, the doctrine that the subject of a patent or its products, must be vendible, does not mean that a demand for it must exist, nor that there must necessarily be an offer for sale, as an essential condition of the validity of the monopoly, what is the construction to be put upon the doctrine? It is, that the thing patented, or its products or results, must be of a vendible character or description; or, such as can be the subject of a sale. This is the construction given to the rule by Mr. Godson,5 for which he cites the expressions of judges, in giving their opinions in patent cases, though he says not case has turned upon precisely this question.96

Sec. XVI.-NOVELTY, PRIORITY,

It is an essential requisite that the invention shall be new. This is expressly provided in the English and American statutes, on this subject. The very

96 He cites the expressions of Heath J.,2 H. Bl. 482; Kenyon C. J., 8 T. R. 99; and Abbott C. J., 2 B. & Ald. 349, 350.

terms invention and discovery import, in their general and most obvious signification, that the thing discovered or invented is new to the inventor. But it is' not so distinctly and necessarily implied in those terms how far it must be new to other persons, as to exclude all doubt, since an invention may be new to the inventor, which is familiar to many others; or it may be new in his neighborhood, and well known in other parts of the country; or it may be new in his own country, while it is in familiar use abroad. And again, although it may have been already known, it may have been so recently invented; as to be still new, at the time of the posterior invention. Had the statutes stopped here, however, and authorized a patent for a new invention, without further explanation, the expression must have been limited by construction, and confined to a patent either to the first or original inventor, or to the first applicant for a patent, since the patent is an exclusive privilege of the making and vending the thing patented, and it is therefore necessary, in order to give the statute effect, to define expressly in the act, or in the construction put upon it, by what criterion the novelty is to be tested. The statutes do not accordingly stop here; they both go further, and define what is to be understood by the thing being new. The statute of James limits the privilege to manufactures, "which others at the time of the making such letters patents, and grants,

did not use. So the act of Congress limits the privilege in like manner to the things "not known or used before the application" for the patent.

On this subject of the novelty of the invention, we shall find some discrepancies between the English and the French law on one side, and that of the United States on the other.

The first inquiry relates to the time in reference to which the invention must be new. Must it be so at the time of the granting of the patent, or at least at the time of the application for it, or is it enough that it is so at the time of the invention by the party claiming a patent? M. Renouard seems in one place to consider it requisite in France that the thing should be new at the time of issuing the patent. He says9? "it is very rare that the discussion may not be referred to this single inquiry, namely, whether the public, at the moment of the delivery of the patent, does, or does not, receive the communication of a species or mode of industry which it did not before possess;" if it does the patent is valid, otherwise it is null. This is the rigorous doctrine of the English law, from which M. Renouard apparently adopts it.

The doctrine strikes the mind as preposterous in either country, but more palpably so in England, where ordinarily very considerable time necessarily

97 C. 5. s. 1. p. 174.

98 Jones v. Pearce, Godson Sup. 4.