Law Dictionary

patent

Patent Law

A patent for an invention is a grant made by the government of the United States to the inventor of any new or useful art, machine, manufacture or composition of matter, or any new and useful improvement in any art, machine, manufacture or composition of matter not known or used by others before his or their discovery or invention thereof, and not, at the time of his application for a patent, in public use or on sale, with his consent or allowance, as the inventor or discoverer; securing to him for a limited time, therein expressed, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said invention or discovery, on certain conditions, among which is the one of at once giving up his secret and making public his discovery or invention, and the manner of making and using the same, so that at the expiration of his privilege, it may become public property. The instrument securing this grant is also called a patent. The subject will be considered by taking a succint view of, 1. The legislation of the United States on the subject. 2. The patentee. 3. The subject to be patented. 4. The caveat and preliminary proceedings. 5. The proceedings to obtain a patent. 6. The patent. 7. The duty or tax on patents. 8. Courts having jurisdiction in patent cases. 9. Actions for violations of patents. §1. Legislation of the United States.

2. The constitution of the United States authorizes congress to pass laws "to, promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right of their respective writings and discoveries." Art. 1, s. 8, n. 8. By virtue of this authority Congress can grant patents to inventors, and it rests in the sound, discretion of the legislature to say when, and for what length of time, and under what circumstances the patent for an invention shall be granted. Congress may, therefore, grant a patent which shall operate retrospectively by securing to the inventor the use of his invention, though it was in public use and enjoyed by the community at the time this act was passed . The first act passed under this power is that which established the patent office on the 10th of April, 1790, 1 Story, L. U. S. 80. There were several supplements and modifications to this first law, namely, the acts passed February 7, 1793, Idem, 300; June 7, 1794, Idem, 363; April 17, 1800, Idem, 753; July 3,1832, 4 Sharsw. cont. of Story, L. U.S. 2300; July 13, 1832, Idem, 2313.

3. These acts were repealed by the act of July 4, 1836, 4 Sharsw. cont. Story, L. U. S. 2504, which. enacts:

§21. That all acts and parts of acts theretofore passed on this subject be, and the same are hereby repealed: Provided, however, That all actions and processes, in law or equity sued out prior to the passage of this act, may be prosecuted to final judgment and execution, in the same manner as though this act had not been passed, excepting and saving the application to any such action, of the provisions of the fourteenth and fifteenth sections of this act, so far as they maybe applicable thereto. And provided, also, That all applications and petitions for patents, pending at the time of the passage of this act, in cases where the duty has been paid, shall be proceeded with and acted on in the same manner as though filed after the passage thereof.

4. The existing laws on the subject of patents are the act of July 4, 1836, already mentioned; the acts of March 3, 1837; Idem, 2546; March 3, 1839; 9 Laws U. S, 1019; August29,1842; ch. 263, Pamph. Laws, 171; May 27, 1848. Minot's Stat. at Large, U. S. 231. §2. Of the patentee.

5. Any person or persons having discovered or invented the thing to be patented, whether he be a citizen of the United States or an alien, is entitled to a patent on fulfilling the requirements of the law. Act of July 4, 1836, s. 6.

6. By the 10th section of the same act it is provided, That where any person hath made, or shall have made, any new invention, discovery or improvement, on account of which a patent might by virtue of this act be granted, and, such person shall die before any patent shall be granted therefor, the right of applying for and obtaining such patent shall devolve on the executor or administrator of such person, in trust for the heirs at, law of the deceased, in case he shall have died intestate; but if otherwise, then in trust for his devisees, in as full and ample manner, and under the same conditions, limitations, and restrictions, as the same was held, or might have been claimed or enjoyed by such in his or her lifetime; and when application for a patent shall be made by such legal representatives, the oath or affirmation provided in the sixth section of this act, shall be so varied as to be applicable to them.

7. And by the act of March 3, 1837, section 6, it is enacted, That any patent hereafter to be issued, may be made and issued to the assignee or assignees of the inventor or discoverer, the assignment thereof being first entered of record, and the application therefor being duly made, and the specifications duly sworn to by the inventor. And in all cases, hereafter, the applicant for a patent shall be held to furnish duplicate drawings, Whenever the case admits of drawings, one of which to be deposited in the office, and the other to be annexed to the patent, and considered a part of the specification.

Source : Bouvier 1856

Language : English

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