434 



PATENT. 



cannot be dispensed with, though it be to keep the 

 specification secret. After a patent lias passed, the 

 time for enrolment cannot be enlarged without an 

 act of parliament. In the United States of America, 

 the patent, after the seal of the United States of 

 America is affixed, is recorded in a book kept for the 

 purpose. 



Infringement. Whether any act is really an in- 

 fringement of the patent, is a question for the jury. 

 The using the least part of the manufacture is an 

 infringement. In Manton v. Manton, the infringe- 

 ment consisted in making a perforation in the ham- 

 mer of a gun in a direction a little different from 

 that in the patent article. If the article manufac- 

 tured be of a different form, or made with slight and 

 immaterial alterations or additions,' if the manufac- 

 tures are really and substantially the same, the pa- 

 tentee is entitled to a remedy, as where the position 

 of the different parts of a steam engine were re- 

 versed. Where several independent improvements 

 are made in the same machine, and a patent is pro- 

 cured for them in the aggregate, the patentee is 

 entitled to recover against any person who shall use 

 any one of the improvements so patented, notwith- 

 standing there shall have been no violation of the 

 other improvements. Remedy for Infringement. 

 The remedies for infringement, in England, are by 

 an action at law for the damages, or by proceedings 

 in equity for an injunction and account. The remedy 

 sought in equity is for instant relief, and it is often 

 preferable to proceed in equity before a suit is com- 

 menced at law. In the United States of America, 

 the circuit court has original cognizance, as well in 

 equity as at law, in regard to patents, and may grant 

 injunctions. The damages for a breach of the pa- 

 tent right, in the United States of America, are three 

 times the actual damage sustained by the patentee : 

 the jury are to find single damages, the court are to 

 treble them. In France, the patentee, in case of 

 infringement, shall recover the damage he may sus- 

 tain, and a penalty for the benefit of the poor, not 

 to exceed 3000 francs, and double in case of a second 

 offence. Repeal. If a patent be void, in England, 

 the king may have a scire facias to repeal his own 

 grant. All persons are injured by the existence of 

 an illegal patent for an invention, and every one is 

 therefore entitled to petition for a scire facias to have 

 it cancelled. Patents are repealed, in the United 

 States of America, by a process in the nature of a 

 scire facias. JVho may obtain a Patent. Aliens 

 who have resided two years in the United States of 

 America are allowed to obtain patents under the act 

 of 1800, on their making oath that the invention has 

 not, to the best of their knowledge or belief, been 

 used in any country before. The English law has 

 no restrictions on this head, and it is every day's 

 practice to grant patents for new inventions to 

 Americans and other foreigners. 



An act has been passed in a late session of par- 

 liament to do away with some of the defects with 

 which our antiquated patent laws are encumbered ; 

 and although it does not pretend to an entire re- 

 moval of the causes of complaint, yet considering 

 the admitted difficulties of the case, and the very 

 objectionable nature of some of the former proposi- 

 tions for amendment, we are not sorry that the work 

 of improvement has been begun with caution; at the 

 same time we wish to consider what has been done 

 only as a beginning, and hope it will lead the way 

 to a general amelioration. 



One great grievance of the system, was the de- 

 struction of all right to a patent which resulted from 

 an inadvertent claim put in to any part of an inven- 

 tion which might not actually be new, although that 

 circumstance should be unknown to the inventor, and 



even although the part claimed should be a small 

 and unessential portion of the whole invention. To 

 make this matter clear, it must be stated that, in 

 explaining the nature of an invention, such as a 

 machine for instance, the patentee is compelled to 

 describe the construction of his invention in the 

 fullest detail, so as to enable an ordinary workman 

 to construct a similar machine. As in every such 

 new invention, certain parts must also necessarily 

 be well known, certain wheels and levers will be 

 like wheels and levers in other machines ; and as to 

 these wheels and levers the patentee can have no 

 exclusive right, he is expected to declare in his spe- 

 cification what parts of the machine he claims as his 

 own invention. To these alone he has exclusive 

 right ; all other parts are public property, and may 

 be used by any one. Thus far all is right ; if it were 

 otherwise, a patentee might be allowed a right to 

 what is not his own. The grievance complained of 

 is, that if a patentee should inadvertently lay claim 

 to any part of his new invention, which part might 

 afterwards be found not original, he lost not only his 

 right to an exclusive use of that one part, but to the 

 entire invention, however new it might be. He was 

 thus cooped up in a dilemma ; if he did not claim 

 the whole of his invention, from a fear of overclaim- 

 ing, he of course lost his right to that which he did 

 not claim ; if, on the contrary, he claimed all which 

 was his own, and it should be found that some part 

 was not original, then he lost his whole patent. The 

 motive to this severity seems to have been the wish 

 to prevent by a penalty an unprincipled schemer 

 from endeavouring to appropriate to himself more 

 than his own. But while the schemer was punished, 

 the honest inventor was often a sufferer* A new 

 machine might have great merit, it might in prin- 

 ciple and action be perfectly new ; but some of its 

 details might have been used in some other machine 

 now in disuse, quite unknown to the inventor. This 

 is discovered by some rival manufacturer, and the 

 patentee loses his right. By the act now passed, 

 this grievance is done away with ; if a patentee 

 should be in the situation supposed,- if he should find 

 that some portion of his invention has been antici- 

 pated, he may now, on a proper representation, ob- 

 tain leave to enter and enrol a disclaimer of such 

 portion, and remain in the situation he would 

 have been in, had no such claim ever been put for- 

 ward. 



It has been objected to this alteration, that advan- 

 tage may be taken of it by a dishonest schemer, who 

 may take out a patent for an invention not his own, 

 and then, as he finds himself discovered, enter a dis- 

 claimer, first to one part and then to another, as such 

 parts are objected to, and in the mean time reap all 

 the advantage of his patent, as though the invention 

 were his own. This we imagine is an impossible 

 occurrence ; it must be remembered that the enrol- 

 ment of the disclaimer is not a matter of right, that 

 it may be refused by the attorney-general, unless a 

 sufficient cause is alleged for the alteration, and that 

 in case of fraud it would undoubtedly be refused. 

 There is also another check, and a strong one, 

 against such a practice : the disclaimer cannot be 

 received in evidence, in case of an action brought 

 before such disclaimer was enrolled. A patentee, 

 therefore, who should make an overclaim, and against 

 whom an action should be brought in consequence of 

 that overclaim, will, as far as that action goes, stand 

 precisely in the situation he would have stood in 

 before the new act was passed. He will be liable 

 to the same penalties, and be put to the same ex- 

 pense in the suit. The only difference is, that lie 

 will be enabled to protect himself from the loss of 

 his whole patent in such a case, and will stand upon 



