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The inventor should be protected in his right to the thing which he produced, both to the extent of the possession and enjoyment of the particular thing which he produced as the result of his labor, but also the right to prevent others from copying it, because it contained the fruit of his mental labor in producing the new ideas or discovery which he embodied in the thing produced.
The laws pertaining to the rights of property apply to the rights of the artisan, the rights of the author, and to the rights of the inventor, and should secure to each the full right to enjoy the fruits of his labor; but there are two kinds of property produced by them: one kind may properly be called material property, and the other kind ideal property; and in the same sense the law pertaining to ihe rights of property may be sub-divided into two classes—the law pertaining to material property and the law pertaining to ideal property, or, as I term it, “ideal law.”
We have in our statute books a copyright law and a patent law. The purpose and object of these two statutes is, one o protect the author, and the other to protect the inventor, in the enjoyment of their ideal property which they respectively produce.
The object of this paper is to show that these laws are inadequate to fully accomplish what they should, partly because they had their origin from an unfortunate and vitiating source, and partly because they have not been based upon correct principles, either by our law makers or by our judiciary. I say by the judiciary because statute law is a mixture of statute and judicial law.
It is now, and always has been, the great misfortune of the owners of ideal property that the source of all law pertaining to such property was the vicious English prerogative of the reigning Sovereign of Great Britain to grant exclusive privileges in the nature of monopolies to any one who gained his favor. These exclusive privileges were granted by the Crown to individuals or communities usually for the importation of, or the sole right to make or sell, certain commodities. These grants were called "patents." They became so numerous that “commercial enterprise decayed, and, as a necessary consequence, trade became almost extinct.” The people remonstrated until, finally, a statute was enacted, during the reign of James I, taking from the Crown the right it claimed to grant monopolies, with certain exceptions. One of these exceptions was :
Provided, nevertheless, and be it declared and enacted, That any declaration before mentioned shall not extend to any letters patents and grants of privileges for the term of one and twenty years or under, heretofore made, of the sole working or making of any manner of new manufacture within this realm, to the first and true inventor or inventors of such manufactures, which others, at the time of making of such letters patents and grants, did not use, so that they be not contrary to the law nor mischievous to the State, by raising the price of commodities at home, or hurt of trade, or generally inconvenient, but that the same shall be of such force as they were or should be if this act had not been made or none other; and if the same were made for more than one and twenty years, that then the same for the term of one and twenty years only, to be accounted from the date of the first letters patents and grants thereof made, shall be of such force as they were or should have been if the same had not been made but for the term of one and twenty years only, and as if this act bad never been had or made, and of none other." (V. 21, J. I, c. 3).
“VI. Provided, also, and be it declared and enacted, that any declaration before mentioned shall not extend to any letters patents and grants of privileges for the term of fourteen years or under, hereinafter to be made, for the sole working and making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others, at the time of making said letters patents and grants, shall not use, so as also they be not contrary to the law nor mischievous to the State by raising prices of commodities at home, or hurt of trade, or generally inconvenient."
This statute, which took from the Crown its prerogative of granting monopolies or exclusive privileges, was called the statute of monopolies, but left with the Crown the right to grant patents for the manufacture of new inventions for the limited period, viz: fourteen years, and was the source of all later patent laws of this and other countries. People ever since have seemed to regard all laws pertaining to the protection of an individual in his right to possess and enjoy any new invention which he may have made, as obnoxious and vicious as the Crown prerogative of granting monopolies or exclusive privileges to any one who may have possessed his favor, or the ability to purchase his favor.
The first Copyright Act in England is "8 Anne, c. 19.” Blackstone points out that this Copyright Act, as well as all later statutes on this subject, like patent rights, were suggested by the exception in the statute of monopolies, 21 James I, c. 13. It is true that a copyright, like a patent right, gives to certain persons the sole right to certain privileges, and, in a sense, would be a monopoly. They are rights to prevent other people from exercising those privileges. The objection that did obtain to the grant by the Crown of monopolies which would deprive other people from engaging in certain pursuits which before existed, does not apply to gran ing to a person the exclusive right to make that which he has invented and first produced, because the author and inventor, by having the exclusive right to publish his own works or make his own inventions, does not deprive others from engaging in any pursuit before known. It was a misnomer to call this privilege which the author or inventor exercised a “monopoly," and the taint of that word should never have been attached to either the patent law or the copyright law. The rights of authors and inventors rest on the principles underlying all civilized law, that a man should be protected in the full enjoyment of the fruits of his own labor. It can make no difference in principle whether the fruits of that labor be ideas, as the fruits of the author's labor, or the combination of ideas, and the useful application of such ideas, or the products of the handicraft of the artisan.
He who assumes to fix a limit to the period of ownership or enjoyment of the artisan to the fruits of his labor, is called an anarchist, and labeled as dangerous to the State, but all civilized governments have fixed a period to the time during which the author and the inventor can enjoy the fruits of their labor, and people have continually denounced the right, eren during a limited period, as a monopoly.
Roman law held that, if a man wrote upon parchment that belonged to another, the writing belonged to the person who owned the blank material. We nowhere find that the Roman law recognized any property right in ideas, but based the right upon the possession of the manuscript. Although Blackstone, in his Commentaries, recognized the right of the inventor and the author to the fruits of his labor, upon the principle of occupancy as well as upon the principle of his originating and producing it, he still found that he had no right of property in the same under the common law of England; that the law which protected them in their property rights was purely statutory.
While the artisan could own the thing which he made, without limit of period, the statutes declared that the right of ownership of the author or the inventor in the fruits of his labor should continue only during a short period. This limitation as to time had its origin in the Statute of Monopoly For many years, in England, it was contended, by the ablest advocates, that the author's reward was glory. Lord Camden, in his famous argument delivered in the House of Lords, in Mil.
Taylor, said : “Knowledge has no value or use to the solitary owner; to he enjoyed, it must be communicated. Glory is the reward of science, and those who deserve it scorn all meaner views. It was not for gain that Bacon, Newton, Milton and Locke instructed and enlightened the world. It would be unworthy of such men to traffic with the dirty bookseller for so much a sheet for letter-press.”
We find, however, that Milton, Shelley, Southev, Johnson and Dickens were litigants, either directly or through their representatives, to recover something besides glory. What they recovered and what they received from their publishers for their literary works was nothing compared with the value they have been to the civilized world. They and other equally eminent authors struggled in poverty, while the products of their labors have stimulated the intellect and invigorated the heart of mankind for generations, as dews and rains of heaven have revivified and beautified the vegetation of earth. They received little therefor besides glory. There is no good reason why their beneficiaries, who have read their works through
generations, should not have meted to them and their descendants material reward which would have been somewhat commensurate with the actual value which they have received therefrom. So, too, with inventors. Who can estimate the value to the material industries of the country of Watt's labors in improving and making practical the steam engine? ('omparatively little could be accomplished with it during fourteen years, which was then the period of the patent, although the fruit of his labor continued to exist and benefit the world, more and more, without price to him or his descendants. Who can compute the material value of the Morse inventions, which were the foundation of the art of telegraphy? The glory that civilization awards him is a compensation, but it did him little good, as he was struggling in poverty, to have his labors appreciated and made available by his cotemporaries. Who can estimate the value of the inventions that have transformed a sickle to a modern harvester? It has been largely instrumental in transforming the poverty-stricken homes of farmers into homes of plenty, or even luxury. Could these inventors have received one-thousandth part of the benefits which they have conferred upon the husbandry of the world, they would have been rewarded beyond all comparison with what they actually received. The invention of the art of transmitting articulate speech telegraphically is recognized by all as being one of the great inventions which will exist to benefit the commercial industries of all time to come. Still, the people of this generation are demanding that the law-makers of the land interpose and fix a price upon which the products of Mr. Bell's labors shall be furnished them. Who can estimate the value of the barb-wire inventions to the agricultural industries of the world? We find that the cost of farin fences in this country is greater than the value of all the buildings of the country, in cities, villages and on farms combined, and that barb wire lessened the cost of a durable and eflicient fencing for farm purposes about one-third. We can get something of an idea of the value of those inventions even during the period of seventeen years, which is the present life of a patent. The Court, in Washburn & Moen M'f'g Co. v. Haish, said of barbed wire:
"It is clear that it has made possible the cultivation of the extensive prairies of the West, the pampas of Brazil, and the steppes of Russia, where, before the introduction of this cheap mode of fencing, it was impossible.”
Still, the people who are the most benefited were the loudest in denouncing the inventors and manufacturers of barb wire as monopolists, seeking to rob the agriculturists of his hard-earned money. In generations to come, all inventors will be awarded the gratitude of the beneficiaries of the inventions, but, in most instances, they and their descendants continued to struggle on in poverty, although the products of their labor had an actual value almost surpassing computation. These inventions, like the works of authors, are always with us as stimulants and educators, from which others start in their labor cf investigation and advancement in the progress of civilization.
The labor of the artisan possesses no such characteristic; it contains nothing new ; it is but an old step repeated, while the labor of the inventor is an advanced step in the development and progress of civilization, because it must contain new ideas. There is no good reason why the invention of the inventor should not be his as long as it continues to be of value, instead of only a limited period, the same as the machine of the artisan is his as long as it continues to be useful, instead of only during a fixed and limited period. The author and inventor perform a labor of greater value and more importance to the ages than the artisan; therefore, the law pertaining to their profit should be such as would encourage them in their labors with the hope of a reward commensurate with the value of the fruit of their labor. Fixing a short period during which they can receive any pay for their inventions or literary work, usually substantially deprives these laborers from receiving any reward for their labor, and this happens generally where the product of their labor is of the greatest value and importance. The most endearing literature is frequently little appreciated by the cotemporaries of its author. The most valuable invention usually becomes but little known during the period of a patent, or even the life of its inventor. There is no reason why the same rule should not apply to the duration of the right of property in the labors of the author or inventor that applies to that of the artisan. Let each seek its market value, and be held at that during the period of its usefulness, and that right descend as an inheritance. If the invention be superceded by other inventions, it is no longer of any comparative utility, and like the worn out product of the artisan's labor, becomes comparatively worthless. The reward which the inventor seeks to obtain during a short period of a patent could thus be distributed through a longer period, and one generation would not be called upon to contribute all of the reward to the inventor of a valuable invention, while it would be open to public use for all time to come. If such were the law, then the amount to be paid might more appropriately be regulated by the interposition of law between the inventor and the user of his property.
Some able thinkers contend that ideal property is so intangible that it cannot be sufficiently identified at all times to determine just what belongs to each author or inventor. This is thought to be particularly the case with inventions. If one inventor conceived the idea of a new art, and continued its development through the various stages of improvement to perfection, the result of his labors would be distinct and tangible as the machine made by the artisan.
It always happens, however, almost without exception, that no art is commenced and perfected by a single inventor, but by many inventors, and then without even reaching perfection. Elias Howe invented the first practical sewing machine, which contained the combination of an eye-pointed needle with a shuttle. Inventors ever since have been inventing improvements on sewing machines, until it appears to many to be impossible to discover in the modern sewing machine just what each inventor added, so as to determine the identical property belonging to each separate owner of the various inventions. This difficulty is more imaginary than real. Every inventor knows what thought he has evolved and wrought into mechanism, and what result that mechanism accomplishes in any machine, either in combination with other mechanisms previously existing in the machine, or independently of other mechanisms. The inability of all to understand just the limit and scope of that new evolved idea made manifest by certain mechanism in a machine, arises from various causes. One who has had no training, and possesses no natural ability in that direction, can no more understand the ideas of the inventor, made manifest in mechanism, than: ne who never learned to read Greek could understand the thoughts of Homer in the language in which he delineated them in his Iliad. Another reason why the separate inventions are not distinguishable from other inventions, consists, not in the fault of the inventor, but in the ignorance of either attorneys. Patent Office officials, or the judiciary; or in their inability to clearly discriminate. This ignorance or inability, especially on the part of the officials and the judiciary, should be obviated. The inventor is worthy greater consideration from our government than he has ever received. The rapid development of this country is largely due to the labors of the inventor. Our imperfect and inadequate patent law has a wide influence in stimulating inventions, and has contributed more largely to the material growth of this country in the last one hundred years than any other law relating to our material development. The inventor's labor being intellectual and material, has largely developed that mechanical ingenuity and critical investigation for which Americans have become famous ; and the remarkable machines, such as the gin and loom, in connection with the manufacture of cotton cloth ; the agricultural machinery, that enables a single farmer to cultivate an entire farm ; the machinery and process that enables the transformation of iron ore to steel ingots; the improvements that enable the traveller to span the continent in a few days, and the farmer to take his products to distant markets, and the merchant to know the prices of the markets of the world daily or hourly,--are all the direct results of the labors of our inventors. Without them this country would have still been comparatively a wilderness. This class of men, who, from the very nature of things, are the advance guard in original investigation as well as mechanical ingenuity, should have more consideration at the hands of the government.
The Patent Office at Washington should be made an adequate and independent executive department, and filled with the most skilled persons in the country in that particular line of thought and investigation, that every invention may be thoroughly understood and appreciated. Then Letters Patent would be made clear and concise, pointing out exactly the particular property of each inventor.
There should also be a separate and especially qualified judiciary, to which all litigation in patent causes be submitted. Our Patent Office at Washington is a department filled with cheap officials, largely appointed by political influence, with no special inducement to thorough work, and, primarily, of no special qualification for the particular work. Under our system of examination in the Patent Office, a poor quality of work is furnished to do that which should receive the highest and brightest ability of the country, and should be paid accordingly. The inventor is willing and able to pay for that work, and does pay now, so that the government receives annually a large surplus from the revenues of that office over and above the expenses of the office. The inventor confers upon the country a great benefit, and should certainly be awarded the privilege of having expert judges especially qualified to pass upon inventions, and Letters Patent therefor, when they are brought into litigation. The inventor is willing to pay for such ability independently of the benefit conferred upon the community by his inventions. There is no good reason why the inventor should not be awarded the privilege of having expert officials to determine what he has invented, and how it should be described and c aimed in a patent issued to him, and then be awarded the privilege of having a judiciary to pass upon his rights, when brought into litigation, who are especially trained and qualified in that department of law. Could this be done, then the property of each inventor should be so administered that each inventor could have his special property protected, and receive therefor the value to which it would be justly entitled. Each separate invention could then be as clearly identified as the separate and distinct machines made by an artisan, and each inventor could receive the value of his invention as long as it remained of value and was wanted by others, the same as the property produced by the artisan.
The Federal Supreme Court, in Miller v. Brasco, decided in 1881 said:
* The power given by the law to issue a new patent upon the surrender of the original, for the correction of errors and mistakes, has been greatly misunderstood and abused."
The Court was condemning the practice of reissuing Letters Patent with broader claims than those covered by the origininal Letters Patent. Prior to this decision, the courts had construed the law authorizing the reissue of Letters Patent to mean that if the patent failed to protect the inventor in the enjoyment of what he had actually nvented, by reason of any error which had arisen by inadvertance, accident or mistake, and without any fraudulent intention, that he should have a right to surrender that patent, and the Commissioner should issue a new patent, which would properly describe and cover what he had actually invented and had disclosed as his invention in his patent. The courts have gone so far as to allow the inventor to file new drawings, showing features not shown in the drawings of the original patent, providing those features were shown in a model that was filed with the original application. It has always been held that the reissue could not cover anything that was not disclosed in the original application, either in the model, drawings or specification. As late as 1881 the Supreme Court found that the following language, “Whenever any patent is inoperative or invalid by reason of a defective or insufficient specification,” did not mean that the “great object” of the law was to enable a person to surrender a patent for the purpose of covering by his patent his invention, but stated :
"The great object of the law of reissue seemed to have been to en: ble a patentee to make the description of his invention more clear, plain and specifie, so as to comply with the requirements of the law in that behalf, which were very comprehensive and exacting.”
Prior to 1881, the word “specification” in this clause of the patent law had been construed to mean the whole description which he had filed, including the written part of the patent, as well as the drawings, and that if it was found that the specification was inoperative and invalid, a new specification could be prepared, which would be operative and valid, to cover and claim what he had invented, the “great object" of the law being to secure to the inventor his invention, instead of solely to make a specification more full and clear. This decision of the Supreme Court deprived inventors and their assigns from the enjoyment of valuable properties, by destroying their titles. Many inventors have not succeeded in obtaining original