Patent right

“ I believe in the possibility and advisableness of presenting, as a substitute for Patents, a system of rewards which will reconcile the honour and interests of men of science and those of practical men, the interests of the master and those of his workmen, the interests of the many and those of the few. Such a system, while entirely emancipating commerce and industry, must, as its condition, deal out its rewards more equitably than the Patent system does, and with more regard to the just claims of inventors. ”

“ When chiefly ascribing the progress made by industry through technical improvements in many of the countries where extensive regulations of Patent-right are provided, to the incitement consequent upon the protection afforded by Patents, the fact is overlooked that the great inventions made in old times, as well as the scientific discoveries which in the modern era paved the way for industry, have perfectly done without any such incitements. ”

“ Where a patent is claimed for such a discovery, it should state the component parts of the new manufacture claimed with clearness and precision, and not leave the person attempting to use the discovery to find it out 'by experiment.' The law requires the applicant for a patent-right to deliver a written description of the manner and process of making and compounding his new-discovered compound. The art is new; and therefore persons cannot be presumed to be skilled in it, or to anticipate the result of chemical combinations of elements not in daily use. ”

“ No one will pretend that a machine, made, in whole or in part, of materials better adapted to the purpose for which it is used than the materials of which the old one is constructed, and for that reason better and cheaper, can be distinguished from the old one; or, in the sense of the patent law, can entitle the manufacturer to a patent.
The difference is formal, and destitute of ingenuity or invention. It may afford evidence of judgment and skill in the selection and adaptation of the materials in the manufacture of the instrument for the purposes intended, but nothing more. ”

“ Hence a never-ending cry, as in the case of all bad laws, for more legislation, for more stringent regulation, for stricter investigation, and more thorough registration of Patents. But no tinkering at details can avail. The whole system is radically unsound; and the only effectual remedy is to lay the axe to the root.
A sentimental plea in favour of Patent-right has been set up by some, on the ground that the inventor—the [123] man of thought, as he is called—must be saved from the toils of the capitalist, ever ready to prey on his superior intellect. ”

“ But the patent for an invention conveys nothing which the government owns or its predecessors ever owned. The invention is the product of the inventor's brain, and if made known would be subject to the use of any one, if that use were not secured to him. Such security is afforded by the act of congress when his priority of invention is established before the officers of the patent-office, and the patent is issued. The patent is the evidence of his exclusive right to the use of the invention ”

“ I agree that, when the right to a patent has become complete, the execution and delivery of the patent itself are the mere ministerial acts of the officers charged with that duty; and I further agree that when the right to a patent has been determined, and the patent has actually been signed, sealed, countersigned, and recorded, no actual delivery is necessary to pass the title. ”

“ That it is the duty of an inventor, if he would secure the protection of the patent laws, to apply for a patent as soon as his machine (if he has invented a machine) is in practical working order, so as to work regularly every day in the business for which it was designed; and if he does not so apply, he has no remedy against any persons who possess themselves of the invention, with his knowledge and without his notification to desist, or of his claims as an inventor before he applies for his patent. ”

“ To escape the incessant and intense competition which exists in every department of industry, it is not strange that persons should seek the cover of the patent act, for any happy effort of contrivance or construction; nor that patents should be very frequently employed to obstruct invention, and to deter from legitimate operations of skill and ingenuity. Thid danger was foreseen, and provided for, in the patent act. The patentee is obliged, by law, to describe his invention, in such full, clear, and exact terms, that from the description, the invention may be constructed and used. ”

“ Does it disclose a patentable invention? That the patent is for a process in manufacture, and not for the mechanism employed, nor for the finished product of such manufacture, is undeniable, and is so expressed upon the face of the specification.
The four claims of the patent make no reference to the mechanism exhibited in the drawings, and described in the specification. All claim an improvement in the art of manufacturing, and set forth in more or less detail the various steps in that process. ”

“ Inventions, in order that the inventors may be entitled to patents for the same, must be new and useful; and the better opinion is, that the improvement must be of such a character that it involved invention to make it, as the Patent Act confers no right to obtain a patent except to a person who has invented or discovered some new and useful art, machine, manufacture, or composition of matter, or some new and useful improvement in one or the other of those described subject-matters. ”

“ Patentability may exist as to either, neither, or both, according to the fact of novelty, or the opposite. The patentability, or the issuing of a patent as to one, in nowise affects the rights of the inventor or discoverer in respect to the other. They are wholly disconnected and independent facts. ”

“ This Board would, therefore, deprecate a too great facility in the obtaining of Patents. If the cost be made cheap, every trifling improvement in every process of manufacture would be secured by a Patent. In a few years no man would be able to make such improvement in his machinery, or processes, as his own experience may suggest, without infringing upon some other person’s Patent. Endless litigation would follow, and the spirit of invention in small matters would be rather checked than encouraged. ”

“ Inventors may, if they can, keep their invention secret; and if they do for any length of time, they do not forfeit their right to apply for a patent, unless another in the mean time has made the invention, and secured by patent the exclusive right to make, use, and vend the patented improvement. ”

“ Justice Bradley, said: 'That the government of the United States, when it grants letters patent for a new invention or discovery in the arts, confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use, without compensation, land which has been patented to a private purchaser, we have no doubt. ”

“ Most processes which have been held to be patentable require the aid of mechanism in their practical application, but, where such mechanism is subsidiary to the chemical action, the fact that the patentee may be entitled to a patent upon his mechanism does not impair his right to a patent for the process, since he would lose the benefit of his real discovery, which might be applied in a dozen different ways, if he were not entitled to such patent. ”

“ But this, we think, does not meet the objection, which, more precisely stated, is that the machine and work holder patents, fairly read, do not embrace a patent for the dominating new result, the process of the reissue patent, but are patents for a particular combination of mechanical means, useful, as is that of petitioner, in availing of the process, but which, as we have said, does not involve invention. ”

“ As the acts of Congress embrace only designs applied, or to be applied, they must refer to finished products of invention rather than to the process of finishing them, or to the agencies by which they are developed. A patent for a product is a distinct thing from a patent for the elements entering into it, or for the ingredients of which it is composed, or for the combination that causes it. ”

“ If this principle be sound as to a machine or instrument whose use may be continued for a number of years, and may extend beyond the existence of the patent, as limited at the time of the sale, and into the period of a renewal or extension, it must be much more applicable to an instrument or product of patented manufacture which perishes in the first use of it, or which, by that first use, becomes incapable of further use, and of no further value. ”

“ The patent statutes do not sanction price-fixing combinations. They are indeed wholly silent about combinations. So far as relevant here, all they grant, as already noted, is the 'exclusive right to make, use, and vend the invention or discovery.' Rev.Stat. ”

“ What was omitted from the first patent, because the inventor consented to abandon it, can never be lawfully brought in afterward by a reissue.
Several lawsuits have culminated in a group of decisions which, if they shall be sustained by the Supreme Court, will open the way to an efficient judicial remedy, whenever Government officers assume to use a patented invention. The English idea has long been that a patent is a monopoly or privilege which the Crown—though forbidden to grant monopolies as freely as might be done centuries ago—may give to a favored person. ”

“ The law, in allowing the grant of a patent to the inventor, does not fail to protect the rights of society; on the contrary, it safeguards them. The power to issue a patent is made to depend upon considerations of the novelty and ultility of the invention. ”

“ When we consider that there are at the present moment 11,369 Patents in force, most of them as invalid as that to which I have referred, and acting as a restriction on manufacturers, we may form some idea of what the community at large has to pay for the luxury of a Patent-Law. ”

“ That is admitted, but the words, as used in the connection here found, with the right simply to use the thing patented, not the exclusive right, which would be a monopoly, necessarily refer to the patented machine and not to the invention; and, indeed, it is in that sense that the expression is to be understood generally throughout the patent law, when taken in connection with the right to use, in contradistinction to the right to make and sell.
The 'thing patented' is the invention ”

“ Speaking on behalf of the public, we maintain that a Patent-Law is necessary in any uncivilised community, because, without its protection, industry cannot flourish, and ingenuity can have no scope for its triumphs. ”

“ Therefore letters patent for an improvement on a patented invention cannot be declared void because they include such patented invention. Much less does it lie in the mouth of a party who is infringing both the improvement and the original invention to set up the existence of the first patent as an excuse for infringing the improvement. It is only the patentee of the original invention who has the right to complain of the use made of his invention. ”

“ One who invents improvements on a prior invention, whether his own or someone else's, may patent the improvements separately. But I do not believe that our patent system was intended to allow the indiscriminate jumbling of the new and the old which would permit the inventor of improvements to extend his domain of monopoly by perpetuating rights in old inventions beyond the 17 years period Congress has provided. ”

“ It is considered by this Board to be a primary axiom that every Patent granted is, during its exclusiveness, a limitation to a certain extent of the general rights of the people, and that in those Patents which have reference to manufacturing processes there may be a disturbance of the general industry of the people. ”

“ He referred to the plan of putting an end to the notion that every person who invented anything had a right to a Patent, and recurring to what, he imagined, was originally the principle intended—namely, the giving of Patents as a matter of grace and favour in well-selected and discriminated cases, in the exercise of a discretion by an authority entrusted with that discretion. ”

“ It was the legislative intention that the term should run from the date of the issue of the patent, and that at the end of that time, the public might derive, from the full specifications required in the application accompanying the patent, knowledge sufficient to enable it freely to make and use the invention. It is true that a patentee is not obliged either to make, use, or vend his invention during the period of his monopoly. ”

“ They know, theoretically, that a patent, to be sustained in the courts, must be for an invention which is "new and useful"; but fail, practically, to apply the test. Evidently the existing system tends to betray an over-sanguine inventor. A solicitor of patents will cheerfully take a fee and undertake to obtain letters. The patent-office will accept further fees; will make an examination for novelty, which is good, as far as it goes, and in some measure a protection against launching an unprofitable venture; and will grant a patent. ”

“ The patent is a privilege. But it is a privilege which is conditioned by a public purpose. It results from invention and is limited to the invention which it defines.' [40]
A second group of authorities encourage authoritiative testing of patent validity. In 1952, the Court indicated that a manufacturer of a device need not await the filing of an infringement action in order to test the validity of a competitor's patent, but may institute his own suit under the Declaratory Judgment Act. ”