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was held that the defendants were infringers of the patent, although they had neither made, sold, nor used machines infringing the patent, but had merely, supplied to purchasers of such machines staples to be used in connection with them, in violation of the inscription upon the metal label affixed to the machine. “Within his domain the patentee is czar” (26).
§ 57. Marking "patented.” It is the duty of a patentee to mark all patented articles made or sold by him with the word "patented,” together with the day and year the patent was granted. In any suit for infringement, by a party failing so to mark, no damages can be recovered by the plaintiff, except on proof that the defendant was duly notified of the infringement, and continued, after such notice, to make, use or vend the article so patented. Marking an unpatented article with the word "patent”, or any word implying that the same is patented, for the purpose of deceiving the public, is an offense punishable by a fine of not less than one hundred dollars, with costs (27).
$ 58. Jurisdiction of Federal courts. The circuit courts of the United States have original jurisdiction in law and in equity of all suits arising under the patent or copyright laws of the United States. Appeal lies from such courts to the various circuit courts of appeals, and since the Judicature Act of February 19, 1897, the decisions of these latter courts are final in all patent
(26) Soe an interesting paper by Mr. George L. Wilkinson of the Chicago Bar, on the doctrines of this subsection, entitled "The Czar's Dom main," read before the Patent Law Association of Chicago, May 21, 1908.
(27) U. S. R. S., Sec. 4900-1.
cases; except that they may certify questions or propositions of law to the Supreme Court, or the Supreme Court may require, by certiorari or otherwise, any such case to be certified to it for review and determination. The jurisdiction of the United States courts in patent cases is exclusive of the courts of the several states (28).
§ 59. Damages in actions at law for infringement. In any action at law for infringement of a patent, the court may award damages in any sum above the amount found by the verdict as the actual damages sustained, according to the circumstances of the case, not exceeding three times the amount of such verdict (29).
$ 60. Actions in equity. The circuit courts of the United States have jurisdiction in equity to enjoin the violation of any right secured by patent, and also to award treble damages in the same manner as in actions at law, above noted (30). § 61.
Defences to actions for infringement. In any action for infringement, the defendant may show noninfringement, upon the principles hereinbefore considered; or that the patent is invalid either for want of patentable subject matter, or for fraud in obtaining it, or for want of novelty or utility, or for anticipation, or probably on any other ground; or he may defend on the ground of express or implied license; or probably on any equitable ground.
(28) U. S. R. S., Secs. 629 and 711.
COPYRIGHT AND TRADE-MARKS. .
SAMUEL DILLON HIRSCHL,
8. B. (University of Chicago)
Patent Solicitor, Chicago Bar.
COPYRIGHT AND TRADE-MARKS.
§ 1. Right at common law. At common law, the author, or owner of an original material product of intellectual labor had the exclusive privilege of first publishing the same; or the right to prevent it from being published by another, unless he should have first published it himself (1). He had a right to determine whether or not it should be published at all, and if published, when, where, by whom, and in what form. But this exclusive right was confined to the first publication. When once published, his work was dedicated to the public, and the author had no exclusive right to multiply copies of it, or to control the subsequent issues of copies by others. This common law right is known as “common law copyright,” or “copyright before publication.” It is the right which an author has in his manuscript, and is a property right. In Palmer v. De Witt (1), it was said, after citing a number of cases: “An author or proprietor of an unpublished literary work has then a property in such work, recognized and protected both here and in England, and the use and enjoyment of it is secured to him as of right. This property in a manuscript is not distinguishable from any other personal property. It is governed by the same rules of transfer and succession, and is protected by the same process, and has the benefit of all the remedies accorded to other property so far as applicable. It is personal, as other movable property, personal in contemplation, following the person of the owner, and is governed by the law of his domicile."
Of the justification for the right, it was said in the great case of Millar v. Taylor (2): “It is certain that every man has a right to keep his own sentiments if he pleases; he certainly has a right to judge whether he will make them public, or commit them only to the sight of his
(1) Palmer v. De Witt, 47 N. Y. 532. (2) 4 Burr, 2303, 2379.
friends. In that state, the manuscript is, in every sense, his peculiar property, and no man can take it from him, or make any use of it which he has not authorized, without being guilty of a violation of his property; and as every author or proprietor of a manuscript has a right to determine whether he will publish it or not, he has a right to the first publication, and whoever deprives him of that right is guilty of a manifest wrong, and the courts have a right to stop it."
§ 2. Subjects included under common law right. It has been held that at common law the author of an unpublished drama was entitled to an injunction to prevent the representation of such drama by others; that a writer of private letters could enjoin their publication by the recipient, on the ground that he retained such an interest in them as to entitle him to such protection; that a lecturer could prevent his lectures from being published; and that a newspaper could prevent the news collected by it from being published by others (3).
In general, the right which was protected at common law may be said to include “every new and innocent product of mental labor which has been embodied in writing, or some other material form, being the exclusive property of its author, the law securing it to him as such, and restraining every other person from infringing his right. Whether the ideas thus unpublished take the shape of written manuscripts of literary, dramatic, or musical compositions, or whether they are the designs for works of ornament or utility, planned by the mind of an
(3) See 1 Ames, Cases Eq. Jur., 658, note 1.