« AnteriorContinuar »
plicated machinery, to decide whether one machine operates upon the same principle as another, and whether that which is stated to be an improvement, be really new and useful. The material point of inquiry generally is, not whether the same elements of motion, and, in some particulars, the same manner of operation, and the same component parts are used, but whether the given effect be produced substantially by the same mode of operation, and the same combination of powers, in both machines. Mere colourable differences, or slight improvements, cannot shake the right of the original inventor. If a machine produce several different effects by a particular construction of machinery, and those effects are produced the same way in another machine, and a new effect added, the inventor of the latter cannot entitle himself to a patent for the whole machine. He is entitled to a patent for no more than his improvement. And if the inventor of an improvement obtain a patent for the whole machine, or mix up the new and the old discoveries together, the patent being broader, and more extensive than the invention, is absolutely and totally void. The invention must be substantially new in its structure and mode of operation.b
The English decisions under their patent law are essentially the same. The statute of monopolies of 21 Jac. I. c. 3. contains the provision under which patents for the term of fourteen years, for new and useful inventions, are granted. It does not confine the privilege to British subjects. It applies to "the true and first inventor of any manner of new manufactures within the rear," and it
a The case of Hill v. Thompson, 8 Taunton, 375. and Evans v. Eaton, 7 Wheaton, 356. may be selected as samples of the intricacy and subtlety of such investigations.
b Woodcock v. Parker, 1 Gallis. 433. Whittemore v. Cutter, ibid. 478. Odiorne v. Winkley, 2 Gallis. 51. Lowell v. Lewis, 1 Mason, 182. Evans v. Eaton, 7 Wheaton, 356.
has been deemed sufficient to entitle the party to a patent, that his invention was new in England, and that it was immaterial whether the patentee acquired the discovery by study or travel. The policy of the law was equally answered in either case." It is allowed in England, as it is with us, to take out a patent for an addition or improvement in any former invention or machine. But he invention must be new and useful and the specification intelligible, and accurately describe it; and if it covers more than is actually new and useful, it destroys the patent, even to the extent to which it might otherwise have been supported; and a patent was declared void, because it extended to a whole watch, when the invention was of a particular movement only.c
In addition to the ordinary remedies by action for violation of a patent right, the party in possession will be protected in the enjoyment of his right, by injunction, provided he has had exclusive possession of some duration. If the right be doubtful, the courts of equity will not interfere by
a Edgeberry v. Stephens, 2 Salk. 447. Darcy v. Allen, Noy, 182, 183. The recent decisions in England seem, however, to throw some doubt over this point, for they speak generally, and without any qualification, of the necessity of the discovery being new; and in Wood v. Zimmer, 1 Holl's N. P. Rep. 58. Lord Ch. J. Gibbs held, that the invention must be new to the world, and if it had been sold before, though by the inventor only, the patent would be void. If we were to judge from the language of the statute of James, the patentee himself must have been the true and first inventor, and there would seem to be no foundation for the opinion of Lord Holt, in Edgeberry v. Stephens. A recent French publication, however, states the English law precisely as laid down by Lord Holt; and that the English law means only new in England. The writer must have been informed, that such was the received doctrine in England. See M. Renouard's Traité des Brevets d'Invention, 197.
b Morris v. Branson, cited in 2 H Blacks. 489. Boulton v. Bull, ibid. 463. Hornblower v. Boulton, 8 Term Rep. 95.
c Hill v. Thompson, 8 Taunton, 375. 3 Merivale, 629. Jessop's case, cited in 2 H. Blacks, 489.
injunction, until the patentee has first established the validity of his patent in a court of law."
a Sullivan v. Redfield, 1 Paine, 441. Hill v. Thompson, 3 Merivale, 622. Livingston v. Van Ingen, 9 Johns. Rep. 507. The law of patents in France is founded on decrees of the constituent assembly of the 31st of December, 1790, and 14th of May, 1791; and it assures to inventors of discoveries in the arts, for a certain period, the exclusive right to make and sell their discoveries, and it makes no dis inction between Frenchmen and foreigners. The patent may be taken out for 5, 10, or 15 years, at the option of the patentee, under the charge of a tax proportioned to the time; and whoever first imports a foreign discovery or improvement, is entitled to the privilege of an inventor. The patentee must exhibit a true and accurate specification of the principles, plans, and models of his discovery or importation. If he obtains a patent for the same object in a foreign country, he forfeits his French patent. The French jurispru dence on this point is very fully considered by A. C. Renouard, in his Traite des Brevets d'Invention, de Perfectionnement et d'Importation. Paris, 1825. The same questions concerning priority of invention, and the requisite proofs, have disturbed the French tribunals, which have so long been agitated in ours. (Repertoire de Jurisprudence, tit. Brevet d'Invention. Questions de Droit, tom. 5. pa. 187.) The law as to patents for new inventions and discoveries in the dominions of the Emperor of Austria, rests upon an imperial decree of the 8th of December, 1820. By that decree, foreigners, residents and non-residents, may obtain patents on the same terms as the native subjects. The objects of the patents are new discoveries; but those are considered as new, which, although known in other countries, are not, at the time of the application, in practical use in the Austrian dominions, nor specifically described in any printed work. The patents may be taken out for fifteen years, and the application for them must describe accurately and minutely the invention, discovery, or improvement, and be accompanied with models, if the nature of the case requires them. The patentee must put his invention into practice within one year from the date of the patent, or he forfeits it. See the substance of the Austrian decree, published in April, 1824, by the Austrian consul, at New-York. The Spanish patent law is founded on a decree of the King and Cortes of 14th of October, 1820. It grants a monopoly of any art or manufacture, to the inventor, for ten years; to him who improves it, for six years; and to him who imports it, for five years. The VOL. II.
(2.) As to copy rights of authors.
The authors of maps, charts and books, being citizens of the United States, or residents therein, are entitled to the exclusive right of printing, publishing, and vending them, for fourteen years; and if the author be living, and a citizen of the United States, or resident therein, at the end of the term, then he is entitled to an additional term of fourteen years, on complying with the terms prescribed by the acts of Congress. Those terms are, that the author or proprietor, before publication, deposit a printed copy of the title of the map, chart, or book, in the clerk's office of the district where he resides, and which copy is to be recorded; and that he cause a copy of the record to be printed on the title page, or the page next following, of the book, and within two months thereafter, cause such record to be published in one or more newspapers printed in the United States, for the space of four weeks; and within six months after publishing the book, cause to be delivered a copy to the secretary of state, to be preserved in his office. The benefits of copyright are extended upon the same terms to authors in the arts of designing, engraving, and etching historical and other prints."
It was for some time the prevailing and better opinion in England, that authors had an exclusive copyright at common law, as permanent as the property of an estate; and that the statute of Anne, protecting by penalties that right for fourteen years, was only an additional sanction, and made in affirmance of the common law. This point came at last to be questioned; and it became the subject of a very serious litigation in the Court of K. B. It was debated at the bar and upon the bench, with great exertion of talent,
law is well drawn and guarded, and is annexed to the Treatise of M. Renouard.
a Acts of Congress, May 31, 1790, ch. 15. and April 29, 1802, ch. 36
and a very extensive erudition and skill in jurisprudence. It was decided, that every author had a common law right in perpetuity, independent of statute, to the exclusive printing and publishing his original compositions." The court were not unanimous; and the subsequent decision of the House of Lords, in Donaldson v. Becket, in February, 1774, settled this very litigated question against the opinion of the K. B., by establishing that the common law right of action, (if any existed,) could not be exercised beyond the time limited by the statute of Anne.b
The act of Congress is expressly declared not to extend to prohibit the importation or vending, reprinting or publishing within the United States, of any map, chart or book, written, printed, or published, by any person, not a citizen of the United States, in foreign places, without the jurisdiction of the United States.c
The statute of Anne had a provision against the scarcity of editions and exorbitancy of price. The act of Congress has no such provision; and it leaves authors to regulate, in their discretion, the number and price of their books, calculating (and probably very correctly) that the interest an author has in a rapid and extensive sale of his work, will be sufficient to keep the price reasonable, and the market well supplied. The act of Congress, though taken generally from the provisions in the statute of 8 Anne, ch. 19., varies from it in several respects. The statute of Anne does not discriminate, as the act of Congress does, between natives and foreigners, or require any previous residence of the latter, but grants the privilege of copyright to every author of any book. The statute of Anne renews the copyright, at the expiration of the fourteen years, if the author be then living, for another term of fourteen years, without any re-entry and
a Miller v. Taylor, 4 Burr. 2303.
b 4 Burr. 2408, Donaldson v. Becket. 7 Bro. P. C. 88. S. C. Beckford v. Hood, 7 Term Rep. 620.
Act of May 31, 1790. sect. 5.