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PRINCIPLES

OF

BRITISH AND FOREIGN COMMERCIAL LAW.

CHAPTER XVII.::.

LAW OF PATENTS.

BRITISH LAW.

TORY

The objects of a patent law are, first, to reward the inventor INTRODUCby securing him a suitable remuneration; and, secondly, to en. courage and stimulate inventions and improvement. The granto of patents and monopolies has always been held to be a sovereiga, privilege, but, owing to the abuse of the same during the reign of Queen Elizabeth, a statute was passed making all such grants void, but providing that patents for the term of fourteen years or under, of the sole working or making of any manner of new manufactures within the realm, to the true and first inventor of such manufactures, which others at the time of making such patents shall not use, are good, so as they be not contrary to law nor mischievous to the State, by raising prices of commodities at home, or to the hurt of trade, or generally inconvenient: the fourteen years to be accounted from the date of the first letters patent (a). Since then several Acts have been passed on the subject. It was provided, first, that a patentee, who may have been found not to be the real inventor, should have power to apply by petition to Her Majesty in council for the confirmation of the patent(); and afterwards that the terms of letters patent might be extended, or that new letters patent might be granted for a term not exceeding seven years after the expiration of the original term (c). The subject has, moreover, been often

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inquired into by committees of both Houses of Parliament, and even now a Royal Commission is sitting on the subject.

SECTION I.

SUBJECT-MATTER OF A PATENT.

Patent must

be for a manufacture.

A patent can be only obtained for an invention of a new manufacture. The word “manufacture” has been generally understood to denote either a thing made which is useful for its own sake, and vendible as such, as a medicine, a stove, a telescope, or many others; or. an engine or instrument, or some part of an engine or instrument, to be employed either in the making of some previously known article, or in some useful purpose, as a stocking frame, or a steam engine for raising water from miños. Or it may perhaps extend also to a new process to be carried on by known implements, or elements, acting upon -kñown substances, and ultimately producing some other known substance, but producing it in a cheaper or more expeditious manner, or of a better and more useful kind. But no merely philosophical or abstract principle can answer to the word manufacture. Something of a corporeal and substantial nature, something that can be made by man from the matters subjected to his art and skill, or, at the least, some new mode of employing practically his art and skill, is requisite to satisfy this word (a). A principle to be the subject matter of a patent must be embodied, because it is not for the principle that the patent is granted, but for carrying the principle into practice (b).

The manufacture or invention must be new; but even where an invention consists in no more than the use of things already known, and acting with them in a manner already known, and producing effects already known, if it produces those effects so as to be more economically and beneficially enjoyed by the public, it is properly the subject-matter of a patent (c). So also

The manufacture must be new

(a) Rex r. Wheeler, 2 B. & Ald. 350.

(6) Jupe v. Pratt. Web. Pat. Cas.

350.

(c) Crane v. Price, 5 Scott, N. R. 338.

ment.

a new combination of materials previously in use for the same purpose, or for a new method of applying such materials (a). But if there be no novelty or invention in the mode of applying an old contrivance to a new purpose, the mere use of such contrivance for another purpose would not be sufficient for a patent (6). An invention is not less new because the inventor had used it It may be

new, though before, in private. The public use and exercise of an invention, used before in which prevents it from being considered a novelty, is a use in private. public, so as to come to the knowledge of others than the inventor. It means a use and exercise in public, not by the public (c).

An invention may be new though it has been used by way of It may be an experiment. But if it has been used as a complete and used before by

new, though perfect invention, the novelty is at an end, although it is difficult way of experito distinguish accurately where the use of an invention for the mere purpose of experiment stops. Nor is the accidental use of a particular machinery, without intention to use it, a sufficient prior use to render it no longer a subject matter of patent (d).

A publication takes place when the inventor of any new Manufacture discovery, either by himself or his agent, makes a written

is not new if

printed and description of that patent, prints it in a book, and sends sold in a it to a bookseller to be published in this country. It is not necessary to establish whether any volume of that book has been sold. When an inventor informs the public of what his invention is, and publishes that in a book, which he sends to a publisher to sell, the moment that book is exposed in the shop for the purpose of purchase, that becomes a complete publication. Nor is there any difference where the inventor is a foreigner, who publishes a book in his own language, but sends it over to a bookseller in this country for the purpose of being sold. As soon as the book comes to this country to be sold, and is offered for sale in the public shop

ook.

(a) Hill v. Thompson, Web. Pat. Cas, 229; Rex v. Wheeler, 2 B. & Ald. 200; Harwood v. Great Northern Railway Company, 29 L. J. Q. B. 198.

(6) Harwood v. Great Northern Railway Company, 31 L. J. Q. B. 198;

Horton v. Mabon, 31 L. J. C. P. 255 ;
Brook v. Aston, 28 L. J. Q. B. 175.

(c) Carpenter v. Smith, 9 M. & W.
300.

(d) Harwood v. Great Northern Railway Company, 29 L. J. Q. B. 193.

The inveni-
tion must be
useful.

of a bookseller, that becomes a publication of the invention,
assuming it to be a clear and accurate description of the inven-
tion in question (a).

The invention must be useful. If an invention fails to pro-
duce the object it is intended for, or, should it accomplish it,
the same is useless, then no patent would be given for it, what-
ever be the cause of the failure (6).

SECTION II.

TITLE AND SPECIFICATIONS.

Title must
be clear and
specific.

The inven
tion must be
accurately
described.

The title of the patent must be clear and specific, precise
and certain. If the title is so generally worded as to be
capable of comprising not only the particular invention, but
improvements not contemplated by it, the patent would be
void (c). The title of the patent should disclose the object of
the invention, though it need not give any idea of it (d).

The invention must be accurately described in the specifica-
tion, and the specification must not cover more than is actually
new and useful (e). The patent would be void if the specifi-
cation be ambiguous, or give directions which tend to mislead
the public (f), or if it omit any ingredient necessary to the
usefulness of the invention. A barren general description,
therefore, though containing some suggestive information, or
involving some speculative theory, could not be treated as ·
avoiding, for want of novelty, a subsequent specification or
invention, unless it was ascertained that the antecedent publi-
cation involved the same amount of useful information. If, for
example, A. has in a specification described a result, but has
not added such a statement of means as to make that result

(a) Lang v. Gisborne, 31 L. J. Ch.
769.

(6) Crossley v. Beverley, Web. Pat.
Cas. 109.

(c) Cook v. Pearce, 8 Q. B. 1044.

(d) Househill Comp. v. Neilson,
Web. Pat. Cas. 678 ; Neilson v. Har-

ford, Web. Pat. Cas. 338; 8 M. & W.
806.

(e) Patent Bottle Envelope Comp.
v. Seymer, 28 L. J. C. P. 23.

(5) Turner v. Winter, 1 T. R. 602;
Hill v. Thompson, 2 Moore, 424.

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