CHAPTER X.

PATENTS AND COPYRIGHTS.

The

§ 518. General Policy of Patent and Copyright Laws. wise policy of promoting the progress of science and useful arts "by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries," was favored in this country at the time when the Constitution of the United States was framed; and to Congress was granted by that instrument the power of regulating and enforcing such a policy. The power thus conferred has since been exercised by Congress to the exclusion of the State legislatures. Accordingly we have for inventors patent rights, and for authors a system of copyrights, — pecuniary interests often of great value, which are in the nature of incorporeal rights, and constitute each a species of personal property.1

Letters-patent evince the title of the inventor, and these are issued from the Patent Office under the Commissioner's seal; but an author's title is less formally exhibited, while his right is a corresponding one in the main. In either case, the party, who seeks that exclusive enjoyment of the writ

ferred to the general treatises of Angell & Ames, Morawetz, Henry O. Taylor, and G. W. Field, accordingly; also to Mr. S. D. Thompson's extensive treatise on Corporations (six volumes), which is in course of publication (1895). All of these are American works, with references to both English and American decisions.

1 Where tangible property comes into existence by virtue of an invention or discovery for which letterspatent issue, its use is, to the same extent as that of other species of

property, subject within the several States to the exercise of their powers over domestic affairs, whether of internal commerce or of police. Patterson v. Kentucky, 97 U. S. 501. A State tax or license law may apply to the tangible property in which the invention or discovery is embodied. Webber v. Virginia, 103 U. S. 344.

The government of the United States, or of a State, ought to compensate the owner of a patent, if using the patent. James v. Campbell, 104 U. S. 356.

ing or discovery which alone makes it valuable property as against the world, complies with certain legal requirements, and in return is allowed for a certain number of years the sole right to this product of his brain which otherwise would have belonged to the public. For neither an inventor nor an author, here or abroad, has any exclusive right of property in his invention or writing, after publishing it, except under and by virtue of the statutes, foreign or domestic, securing it to him, and in accordance with the regulations and restrictions of those statutes.1

§ 519. Patents first to be considered; Subjects patentable. I. Taking up first in order the subject of patents, which has grown in this country to be of immense importance, -affording abundant business, both for solicitors of letters-patent before the Patent Office and counsel in cases of conflicting rights before the courts, let us see what subjects may be patented under our laws. The act of 1870 declares that "any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof, not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by the law, and other due proceedings had, obtain a patent therefor." 2

1 See 137 U. S. 41.

2 Act July 8, 1870, § 24. See also U. S. Rev. Stat. (1878) §§ 4883-4936. The code expression of 1878 is given in the text above. Language to much the same effect is to be found in former acts of Congress on this subject; but in this act of 1870 the patent, copyright, and trademark laws of the United States are revised, consolidated, and amended, and some verbal changes have been introduced. The patent law of the United States is the offspring, in a

VOL. I.

measure, of that of Great Britain. The English patent law is somewhat different from ours, though in some respects giving rise to a corresponding exposition of legal principles. The foundation of the modern English patent law appears in a negative provision in the Statute of Monopolies, passed during the reign of James I. (21 Jac. I. c. 3) curtailing the power of the crown to grant monopolies, but excepting letters-patent and grants of privilege of the "sole working or making of any manner of new 43 673

What, then, is the legal significance of these terms, "art," "machine," "manufacture," and "composition of matter"? This phraseology appears in the former patent acts, and the terms have already received judicial construction. "Art" is a word of rather broad signification, and may be said to include an invention or discovery where the particular apparatus or materials employed are not essential, but rather the use of apparatus or materials in new processes, method, or relations. The word "machine" is more limited in its application; and a function or mode of operation embodied in mechanism designed to accomplish a particular effect, as distinguished from a mere function or abstract mode of operation, is a machine under the patent laws.2 A "manufacture" is literally anything made by the hand of man, and in this sense the English law applies it; but the courts in this country appear to regard a manufacture as something apart from machinery,-fabrics or substances, in fact, made by man's industry or art, not being machinery.3 A "composition of matter" includes medicines, compositions used in the arts, and other combinations of substances intended to be sold separately.*

§ 520. Novelty and Utility essential to the Invention or Discovery. But, according to the statute, the person who seeks a patent must have invented or discovered a new and useful art, machine, &c., or else a new and useful improve

manufactures," &c. There are various later statutes on the subject, of no vital consequence, cited in Fisher's Harr. Dig. "Patent." The crown has always exercised a control over the trade of the country, and, though restrained by common law and the Statute of Monopolies, might grant within reasonable limits the exclusive right to trade with a new invention for a reasonable period. Caldwell v. Vanvlissengen, 9 Hare, 428.

The British courts, unlike ours, construe an introducer as well as an originator to be an inventor. Simonds Summary of Patents, c. 1.

1 See Curt. Pat. 3d ed. §§ 9-19, and cases cited; McClurg v. Kingsland, 1 How. 204; Corning v. Burden, 15 How. 252.

2 Curt. Pat. §§ 20-24; Blanchard v. Sprague, 3 Sumn. 535; Boulton v. Bull, 2 H. Bl. 463; Seymour . Osborne, 11 Wall. 516. A mere abstract principle or idea is not patentable, for the machine is a concrete thing. Burr v. Duryee, 1 Wall. 531; Case v. Brown, 2 Wall. 320. 3 Curt. Pat. §§ 25-27. 4 Ib. §§ 28, 29.

ment thereof. Two points, then, are essential to a sufficiency of invention, novelty and utility; and this holds true whether in relation to the original thing itself or to any improvement on the original thing.

The requirement of novelty is satisfied if the subject-matter of the thing for which a patent is asked be substantially different from what has gone before; and in determining this question the rule has been to consider the character of the result reached, and not the apparent amount of skill, ingenuity, or thought exercised. A combination of materials may be substantially new, although each ingredient has often been used for other purposes; and, as Judge Story has observed, though a combination may be apparently very simple, "the simplicity of an invention, so far from being an objection to it, may constitute its great excellence and value." Still, however, to distinguish the patentable from the unpatentable in respect to novelty is often a matter of extreme difficulty. To apply an old contrivance to a new use, or make double application of some old mode, or to combine old elements of various earlier devices for the old functions, is unpatentable; as where one uses an apparatus by which the back of a rocking-chair can be placed at any desired angle, the same apparatus having long been applied to other things than chairs for a like purpose: or where the sole change in making door-knobs consists in substituting porcelain for wood or iron;2 or in using iron alone where wood and iron were formerly united. But to produce a new and beneficial result, as in the process of printing notes by steel plates where copper plates were formerly used, is held to give a claim to a patent. A new process of manu

1 Story, J., in Ryan v. Goodwin, 3 operation. See also 134 U. S. 388; Sumner, 514, 518. 135 U. S. 227; 148 U. S. 547.

2 See Hotchkiss v. Greenwood, 11 How. 248; Bean v. Smallwood, 2 Story, 408; Curt. Pat. §§ 49-54.

3 Hicks v. Kelsey, 18 Wall. 670. Here the purpose was the same, also the means of accomplishment, and the form of the thing and mode of

4 Kneass v. Schuylkill Bank, 4 Wash. 9. See also, on novelty, Curt. Pat. §§ 41-81, and cases cited; Booth v. Kennard, 38 E. L. & Eq. 457; Le Roy v. Tatham, 14 How. 156; 22 How. 132; 151 U. S. 139.

facture, in truth producing a different article in combinations and decidedly different and advantageous results, is thus to be distinguished from that which is unpatentable.1 And the Supreme Court of the United States has ruled that changes in the construction and operation of an old machine, so as to adapt it to a new and valuable use which the old had not, are patentable.2 Mere reduction of cost or the use of superior materials would not appear to satisfy the requirement of novelty; and yet such considerations have sometimes carried considerable weight where a new result was produced from old materials. It is the invention of what is new, and not the arrival at comparative superiority or greater excellence in that which was already known, which the law protects by patent as exclusive property. Nor is it enough that a thing is new, in the sense that in the shape or form in which it has been produced it has not been known; but (besides being useful) the thing must have been invented or discovered.a

1 Mr. Justice Bradley in Hicks v. Kelsey, supra; 148 U. S. 556. A new article in commerce is not necessarily patentable; the changed article must be more or less efficacious or possess new properties by a combination with other ingredients. See Glue Company v. Upton, 97 U. S. 3.

2 Seymour v. Osborne, 11 Wall. 516. See Tucker v. Spalding, 13 Wall. 453; 155 U. S. 597.

3 Mr. Justice Swayne, in Smith v. Nichols, 21 Wall. 112, observes: "A new idea may be ingrafted upon an old invention, be distinct from the conception which preceded it, and be an improvement. In such case it is patentable. But a mere carrying forward, or new or more extended application of the original thought, a change only in form, proportions, or degree, the substitution of equivalents, doing substantially the same thing in the same way by substantially the same means with better results, is not such invention

as will sustain a patent." Here a well-known textile fabric was produced with higher finish and greater beauty of surface, the result apparently of greater tightness in weaving. Rubber-tip pencil held not a new invention. Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498; Reckendorfer v. Faber, 92 U. S. 347; 152 U. S. 100. The bringing together several old devices (as in a stove) without producing more than an aggregate of old results, is not patentable. Hailes v. Van Wormer, 20 Wall. 354. Where a patent is for an entire process made up of several constituent steps or stages, the patentee not pretending to be inventor of those constituents, his claim does not secure the exclusive use of the constituents singly, but their use when arranged in the process. Mowry v. Whitney, 14 Wall, 620.

4 Burt v. Evory, 133 U. S. 349; 132 U. S. 693. On the whole, the tendency of the Supreme Court de