620 



PATENTS. 



His case came into court, and was lost on the 

 ground of too great extent of claim. This 

 patent had gone safely through the office, to 

 be declared invalid by the higher powers. 



Originality. Referred to the person applying 

 for a patent, the thing must be his invention. 

 The inventor must have invented it personally, 

 and must make an oath to that effect. It often 

 happens that the inventor has been preceded 

 by another, and that he is a second or third 

 inventor only. The Patent-Office is obliged, if 

 the other conditions be fulfilled, to grant the 

 patent to the first inventor. If it by accident 

 grants the patent to the second inventor, the 

 first has his remedy in interference proceedings. 



Novelty. The originality of the invention 

 being settled, it has next to be considered, un- 

 less it is totally original, whether there is a 

 sufficient change from existing structures or 

 processes. The majority of inventions at this 

 time consist in such changes. The question 

 to be determined is whether these changes 

 were obvious, or whether they required inven- 

 tion for their development. When nothing 

 more than the ordinary knowledge or skill of 

 one conversant with the art was required, there 

 is no invention. Some of these changes are so 

 ingenious and beneficial in their results as to 

 be true inventions, however clearly changes. 

 The best authority is good common sense ap- 

 plied by a qualified and disinterested person. 

 The inventor is almost certain to take too favor- 

 able a view of the change he has effected. 



Doable Use. Double use of an existing struct- 

 ure or other invention, if accompanied by ever 

 so slight a change, may be patentable. The 

 office will be found rather strict in dealing with 

 this class of subjects. The general rule in the 

 case of a machine is that it, with all its pos- 

 sible functions, is the property of the inventor. 

 A grindstone invented for the purpose of grind- 

 ing needles, would be protected for grinding 

 pins. But where the use contemplated in the 

 original patent was widely different from the 

 use discovered by a new inventor, but little 

 will be required to constitute an invention. 



As an illustration of Patent-Office practice, 

 some of its decisions may be quoted. It has 

 declared unpatentable the following devices: 

 Applying to a paddle-wheel vessel a device bor- 

 rowed from a land- vehicle; doing the same with 

 reference to a wind-mill and paddle-wheel; 

 preserving fruits by a process already used for 

 eggs; using the sand-blast for cleaning iron. 

 The subject of double use is extensive. The 

 courts and the Patent-Office proceed very dif- 

 ferently here. The former give the patentee 

 the benefit of the doubt ; the office does the 

 reverse. As a practical rule, where the ques- 

 tion of double use is in issue, if a patent passes 

 the office, it will be safe in the courts. The 

 courts have for their assistance the knowledge 

 of the results achieved by the patented article. 

 If anything in the nature of an industrial 

 revolution has been accomplished, it tends to 

 prove that invention has been exerted. This 



refers to change of existing structures, as well 

 as double use. The consideration of results 

 achieved affects both. The office has to take a 

 more abstract view of the subject, knowledge 

 of results not being ordinarily at its disposal. 

 If a functional change in a machine has been 

 produced, it is invention; if only a structural 

 one, invention is probably absent. Novelty is 

 one of the statutory characters of patentable 

 things, and it is affected by several sharply de- 

 fined considerations of prior use and publica- 

 tion. The pioneers in invention have always 

 the best chance in this matter. 



Prior Use. An invention will not be new if 

 it has been in use in this country before its in- 

 vention by the patentee was completed. An 

 inventor may have honestly worked at his con- 

 ception, and completed a perfect invention, 

 only to find that the same thing has been done 

 before, and that his device was in use in this 

 country long before he thought of it. For thia 

 there is no remedy ; his invention is unpatent- 

 able. Prior use must have certain character- 

 istics, to make it efficient in destroying patent- 

 ability. It must be public, no matter in how 

 limited a sense. Private use has been decided to 

 be ineffectual. A patentee is required to have 

 a quid pro quo to exchange for his patent- 

 right. He must make a gift to the public of 

 something they were not already possessed of. 



The anticipating structure, to come under 

 prior use, must be a complete realization of the 

 subject of the invention, and must have been 

 successful in its operation. An abandoned ex- 

 periment will not answer. A general resem- 

 blance of an inoperative structure will not an- 

 swer, reduction to practice being essential. 



Prior use abroad does not affect the invent- 

 or. The theory is, that the public in this 

 country have no knowledge of the customs of 

 other countries, as far as mere rumor or verbal 

 report is concerned. This theory is recognized 

 in the wording of the statute, where prior use 

 is limited to prior use in this country. 



Publication. Publication affects patentability 

 differently. If a description of the invention 

 has been published in printed form, here or 

 abroad, before the date of invention, an antici- 

 pation is proved. No exception is made in the 

 case of foreign "publications, as printed matter 

 is supposed to travel everywhere. It must be 

 a genuine publication. Eejected applications 

 for patents are held to afford no instances of 

 prior publication, if descriptions of inventions 

 are found in them. 



Combinations. Within the past few years, 

 new and very important rulings have been in- 

 troduced in the Patent-Office on the question 

 of combination, and the practice has become 

 extremely stringent in this regard. All the 

 parts of a patent must co-operate to the end, 

 in the strictest possible manner. An aggrega- 

 tion or mere collection of parts will be held to 

 be unpatentable. Like a perfect drama, the 

 invention must have its unities. Every part 

 of the combination that is specified in the 



