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troublesome and expensive process to procure an additional term of seven years, on proof of the insufficiency of the first term to afford them what the committee may deem a reasonable remuneration.
By the first clause of this Act, any person having obtained letters patent for an invention may enter a disclaimer of any part of his specification, or a memorandum of any alteration therein.
By the second clause, a patentee who shall be proved not to be the real inventor, though he believed himself to be so, may petition for confirmation, and be beard before the Judicial Committee of the Privy Council, which committee on proof of the petitioner’s allegation, and that the invention or part thereof had not been publicly and generally used before the date of the letters patent, may report in favour of such confirmation and renewal.
By the third clause it is enacted, that if in any action or suit, a verdict or decree shall pass for the patentee, the judge may grant a certificate, which being given in evidence in any other suit, shall entitle the patentee, upon a verdict in his favour, to receive treble costs.
By the fourth clause, patentees may petition for prolongation, and be heard before the judicial committee, who may then recommend such prolongation for a term not exceeding seven years from the expiration of the first term. And it was provided that every such petition must be prosecuted with effect before the expiration of such original term.
By the fifth, sixth, and seventh clauses, certain provisions were made aş to notice of objections in case of action ; special consideration in taxing costs of the several parts of the case proved or not proved; and a penalty of fifty pounds enacted for infringement, “one balf to His Majesty, and the other to any person who shall sue for the same."
But so much of the fourth clause of this bill as made it necessary that a petition for prolongation should be prosecuted with effect prior to the expiration of the original term, was repealed by an act passed at the close of the session of 1839, (2 & 3 Vict., c. 67,) wbich enabled the judicial committee to recommend such prolongation, provided the omission were shown to have resulted from causes other than the neglect or default of the petitioner.
The provisions in the first and second clauses are useful, and had long been called for. But the bill has done very little towards simplification of process, and nothing towards diminution of expense.
In respect of the prolongation of patents, the judicial committee, though not limited by the terms of the Act, appear to have followed the principles heretofore acted on by the legislature, as in Champion's,* Watts,t and other similar cases.
In the matter of Erard's patent, which came before the judicial committee shortly after the passing of the act (and which was an unopposed petition) for extending the terms of several patents obtained in 1821,
* 15 Geo. III. c. 52.
+ 15 Geo. III. c. 61.
(England), 1822 (Scotland and Ireland), and in 1825, for improvements on pianofortes, the petitioner stated the defects of pianofortes of the ordi. nary construction, and that his efforts bad long been directed to remove them ..., that since he had obtained his first patents, he had expended upwards of 15,0001. in perfecting his improvement, and introducing it to the public; and thatófrom opposing prejudices and conflicting interests, he had not been able to establish it in the perfect good opinion of the public until lately, and that consequently the term of his patent was about to expire, without his having obtained returns at all equal to his expenditure, and without any remuneration for his talent and exertions. Evidence having been adduced in support of the petitioner's allegations, the court was of opinion, that “a sufficiently strong case had been made out, both on the score of hardship and on the merits of the invention, to justify it in recommending .... the patent of 1821 for a further term of seven years ; but the court was of opinion that no case had been made out as to the patent of 1825;" and Lord Lyndhurst added, that in all such cases the Privy Council would require a strong case of hardship to be made out, as well as a strong case on the utility of the invention."
By a return, dated March 2, 1840,+ to an order of the House of Commons, it appears, that up to the end of 1839, seventeen petitions (exclusive of second applications) for prolongation had been lodged with the judicial committee, of which six only were opposed. A further term of three years was granted in one case; further terms of five years in three cases ; a further term of six years in one case; and further terms of seven years in
Three applications were abandoned, and one dismissed; and one was still pending. In this respect, therefore, the Act has afforded considerable relief, although in a way more than needfully expensive.
But all the most serious defects--as enumerated in the text in the old law of patents still remain wholly untouched by this Act. In the brief discussion which took place on it in the Commons, Mr. Lennard, who bad been chairman of the select committee of enquiry in 1829, justly observed that Mr. Godson's bill of 1833 was far more comprehensive and perfect than the present one; although that had been rejected by the Lords, because not sufficiently comprehensive." Tbat bill would, to a considerable extent, have reduced the fees, and simplified the processes, and it included the grand improvement of extending letters patent readily, and at small charge, to the whole United Kingdom.
It has been stated in the text that America has already, to some extent, reformed her system of patent law, originally similar to our own. I think the principles developed in the report, on which this reform was based, so important, that I subjoin an abridgment of it in the next note.
* See Drewry's Patent Law Amendment Act, with notes and cases, p. 16. † Sessional papers, 1840, No. 155.
Note B.* On the American Law of Patents. Extracts from the Report of a Select Committee of Congress appointed to
take into consideration the state and condition of the Patent-Office, and the Laws relating to the issuing of Patents for new and useful Inventions and Discoveries.
“ The promotion of the arts and the improvement of manufactures are the objects aimed at in granting patents for inventions. All civilized nations have provided in some form for the encouragement of inventive genius.
“ The granting of exclusive privileges was in England originally assumed as a prerogative of the Crown, from which it derived a revenue.
It was at first limited to the introduction of manufactures from other countries. Afterwards like privileges were granted for new inventions made within the realm. Like all other regal prerogatives, it was subject to abuse, and Parliament found it necessary to limit and restrain it. This was done by the famous statute of monopolies, passed in the reign of James I. which defined the king's prerogative in respect to the description of grants which might legally be made, and among them were patents for inventions and new manufactures. The very brief reservation of right in the Crown contained in that statute, and the judicial decisions in cases arising under the grants of privileges made pursuant to it, constituted the whole of the English law on the subject up to 1835, when a law was passed by Parliament, [i. e. Lord Brougham's Act, noticed above.)
“ It is from those judicial decisions that we have derived most of the principles on which our laws on the subject are founded, and which have entered into and influenced the judicial expositions given to them. But the decisions of our courts bave been characterized by a more enlightened and liberal application of equitable principles to cases of this description, in a just endeavour to sustain patents for meritorious inventions, instead of seeking to find, in the technicalities of law, a pretext for setting them aside.
“ Prior to the adoption of the federal constitution, the States, within their narrow limits, could give very little encouragement to inventors by grants exclusive privileges; and up to that time the arts had made very little progress on this side of the Atlantic. By the constitution of the United States that power was wisely vested in Congress.
“ The first Act of Congress on the subject was passed in 1790. It authorized the Secretary of State, Secretary of War, and the Attorney-General, or any two of them, on application, to grant patents for such new inventions and discoveries as they should deem “sufficiently useful and impor. tant.” Under that Act the board so constituted exercised the power of refusing patents for want of novelty in the invention, or of sufficient utility and importance. This Act extended the same privilege to aliens as to citizens. In 1793, it was repealed, and another Act passed, authorizing patents to citizens of the United States only, to be granted by the Secretary of State, subject to the revision of the Attorney-General. In 1800, the
privilege to take out patents was extended to aliens who have resided two years in this country, and made oath of their intention of becoming citizens of the United States.
“ The Act of 1793, which is still in force, gives, according to the practical constructien it has received, no power to the Secretary to refuse a patent for want of either novelty or usefulness. The only enquiry is, whether the terms and fornis prescribed are complied with. The granting of patents, therefore, is but a ministerial duty. Every one who makes application is entitled to receive a patent by paying the duty required, and making his application and specification in conformity with the law. The necessary consequence is, that patents have, under the Act of 1793, been daily granted, without regard to the question of novelty, or even utility in the ordinary sense ; for it has been settled that the term useful, as used in this statute, is only in contradistinction to hurtful, injurious, or pernicious.......
“ Under the Act referred to, the Department of State has been going on for more than forty years, issuing patents on every application, without any examination into the merit or novelty of the invention. And the evils which necessarily result from the law as now exists, must continue to increase and multiply daily, till Congress shall put a stop to them. Some of them are as follows:
“). A considerable portion of all the patents granted are worthless and void, as conflicting with and infringing upon one another, or upon public rights not subject to patent privileges; arising either from a want of due attention to the specifications of claim, or from the ignorance of the patentees of the state of the arts and manufactures, and of the inventions made in other countries, or even in our own.
“ 2. The country becomes flooded with patent monopolies, embarrassing to bona fide patentees, whose rights are thus invaded on all sides; and not less embarrassing to the community generally, in the use of even the most common macbinery and long-known improvements in the arts and common manufactures of the country.
“ 3. Out of this interference and collision of patents and privileges, a great number of lawsuits arise, which are daily increasing in an alarming degree, onerous to the courts, ruinous to the parties, and injurious to society.
“ 4. It opens the door to frauds, which have already become extensive and serious. It is represented to the committee that it is not uncommon for persons to copy patented machines in the model-room ; and having made some slight immaterial alterations, they apply in the next room for patents. There being no power given to refuse them, patents are issued of course. Thus prepared, they go forth on a retailing expedition, selling ont their patent rights for states, counties, and townships, to those who have no means at hand of detecting the imposition, and who find, when it is too late, that they have purchased what the venders had no right to sell, and wbich they obtain thereby no right to use.
“A necessary consequence is, that patents even for new and meritorious inventions are so much depreciated in general estimation, that they are of but little value to the patentees, and the object of the patent laws, that of promoting the arts by encouragement, is in a great measure defeated.
“ To prevent these evils in future is the first and most desirable object of a revision and alteration of the existing laws on this subject. The most obvious if not the only means of affecting it appears to be to establish a check upon the granting of patents, allowing them to issue only for such inventions as are in fact new and entitled, by the merit of originality and utility, to be protected by law. The difficulty encountered in affecting this is in determining what that check shall be, in whom the power to judge of inventions before granting a patent can safely be reposed, and bow its exercise can be regulated and guarded, to prevent injustice through mistake of judgment or otherwise, by which bonest and meritorious inventors might suffer wrong.
“It is obvious that the power must, in the first instance, be exercised by the department charged with this branch of the public service. But as it may not be thought proper to intrust its final exercise to the department, it is deemed advisable to provide for an occasional tribunal to which an appeal may be taken. And as a further security against any possible injustice, it is thought proper to give the applicant, in certain cases, where there may be an adverse party to contest his right, an opportunity to bave the decision revised in a court of law.
“ T'he duty of examination and investigation necessary to a first decision at the Patent-office, is an important one, and will call for the exercise and application of much scientific acquirement and knowledge of the existing state of the arts in all their branches, not only in our own but in other countries. Such qualifications in the officers charged with the duty will be the more necessary and desirable, because the information upon which a rejection is made at the office will be available in the final decision. It becomes necessary, then, to give the Patent-office a new organization, and to secure to it a character altogether above a mere clerkship. The competency and efficiency of its officers should correspond with their responsibility, and with the nature and importance of the duties required of them. When the existing organization was adopted, the granting of patents was a matter of little importance, compared with what it now is...
“ The greatly increasing number of patents granted affords some indication of tbe improvements which have been going on in the useful arts from year to year. The average number issued annually, from 1790 to 1800, was but 26; from 1800 to 1810 the average number was 91; from 1810 to 1820 it was 200; and, for the last ten years, the average number has been 535. During the last year, there were issued 776; and there have been granted in the first quarter of the present year 274, being more in three months than were issued in the whole of the first period of ten years. In the twenty-two years preceding the war of 1812, the average annual number was 73. The first quarter of the present year indicates an