limited time, to authors and inventors, the exclusive privilege to their writings and discoveries; and, as it is not granted by exclusive words, to the United States, nor prohibited to the individual States, it is a concurrent power, which may be exercised by the States, in a variety of cases, without any infringement of the congressional power. A State cannot take away from an individual his patent right, and render it common to all the citizens. This would contravene the act of Congress, and would be, therefore, unlawful. But if an author or inventor, instead of resorting to the act of Congress, should apply to the legislature of the State, for an exclusive right to his production, I see nothing to hinder the State from granting it, and the operation of the grant would, of course, be confined to the limits of the State. Within our own jurisdiction, it would be complete and perfect. So a patentee, under the act of Congress, may have the time of his monopoly extended by the legislature of any State beyond the term of fourteen or twenty-eight years allowed by that law. Congress may secure, for a limited time, an exclusive right throughout the Union; but there is nothing in the constitution to take away from the States the power to enlarge the privilege within their respective jurisdiction.

Again, the power granted to Congress goes no further than to secure to the author or inventor, a right of property, which, like every other species of

property, must be used and enjoyed within each State, according to the laws of such State. The power of Congress is only to ascertain and define the right of property; it does not extend to regulating the use of it. That must be exclusively of local cognisance. If the author's book or print contains matter injurious to the public morals or peace, or if the inventor's machine, or other production, will have a pernicious effect upon the public health or safety, no doubt a competent authority, remains with the States to restrain the use of the patent right. That species of property must likewise be subject to taxation, and to the payment of debts, as other personal proerty. The national power will be fully satisfied, if the property created by patent be, for the given time, enjoyed and used exclusively, so far as under the policy of the several States the property shall be deemed fit for toleration and use.

It has been the uniform opinion in England, both before and since the statute of James, that imported improvements, no less than original inventions, ought to be encouraged by patents. And can we for a moment suppose that such a power does not exist in the several States? We have seen that it does not belong to Congress, and if it does not reside in the States, it resides no where, and is wholly extinguished. This would be leaving the States in a condition of a singular and contemptible imbecility. The power is important in itself, and may be most benefi

cially exercised for the encouragement of the arts; and if well and judiciously exerted, it may meliorate the condition of society, by enriching and adorning the country with useful and elegant improvements. This ground is clear of any constitutional difficulty, and renders the argument in favor of the validity of the statutes perfectly conclusive.

The Court of Errors adjudged the exclusive privilege granted by the legislature of the State to the appellants, to be valid, and ordered that a writ of injunction should issue against the respondents. Livingston v. Van Ingen, 9 Johns. R. 506.

Thus the question rests, as a subject of judicial decision, to the present time, for though the subject of Livingston and Fulton's monopoly was again brought before the Court of Chancery of New York," also before the Supreme Court of Errors of that State, 27 and finally before the Supreme Court of the United States, 28 yet as the decision eventually turned upon the act of Congress regulating the coasting trade, and not upon the general power of the States to grant monopolies the point decided being that a law of any State contravening the laws of the United States regulating commerce, was, as far as it was inconsistent with those laws of the United States, unconsti

"Ogden v. Gibbons, 4 Johns. Ch. R. 150.

27 S. C. 17 Johns. R. 488.

" Gibbons v. Ogden. 9 Wheat. 1.

tutional and void-it remains undecided by the tribunal of last resort how far the several States can grant monopolies, or whether they can grant any, consistently with the constitution and laws of the United States.

CHAPTER V.

Character and Spirit of the Jurisprudence upon
Patent Rights.

THE jurisprudence on patents has been said to constitute the metaphysics of the law. The difficulty of administering and giving a construction to this branch of law, lies, says Mr. Justice Story, "not so much in the general principles, as in the minute and subtle distinctions which occasionally arise in the application of these principles." For instance, the subject of a patent must be new, and useful, and clearly described, for so the law requires. There is not the least difficulty respecting these general doctrines; but when we come to inquire what is new, that is, whether the thing is so similar to, or

1

1 Barrett v. Hall. 1 Mason R. 472.

diverse from, what has already been done or produced, as to be substantially the same, or different, the questions are often of a subtile metaphysical character. The same remark is applicable to the question whether a thing is useful, and a decision on the other of these questions, relating to the sufficiency of the specification, involves a nice analysis of the invention and the description of it by the patentee. It follows, from this character of the jurisprudence on this branch of law, that the beneficial effect of the law depends quite as much upon the principles and spirit with which it is interpreted and administered, as upon the general provisions of the law itself, since it is to no purpose to provide for a temporary monopoly of a thing on condition that it shall be described with greater clearness and precision than the nature of the case admits of, or than can be attained by the skill of those whom the inventor must employ.2

If, therefore, the doctrine laid down by Lord Kenyon is to be adopted, the beneficial effect of the law as a reward to inventors, will be defeated. He says, "I confess I am not one of those who greatly favor patents; for though, in many instances, the

2 Mr. Arthur Aikin, Secretary to the Society for Encouragement of Arts, in his testimony before the Committee of the House of Commons on this subject, in 1833, thinks that the cases turn upon points of law, because neither the judges nor jury understand the matter practically; and Mr. Newton says the merits rarely come in question. Mr. Farey, another witness, says, the judges are astute in observing flaws. Westm. Rev. No. 44, p. 247. Foster's Am. Ed.