The holder of a defective patent, may surrender it to the department of state and obtain a new one, which being a continuation of the first, shall have relation to the emanation of the first, and the rights of the patentee shall be ascertained by the law under which the original application was made. In no case can a patentee by taking out a new patent for the same invention, or by any other means, prolong his exclusive right beyond the limitation annexed to the first patent.b

A patent right is personal property, and is assignable ; and the patented article may be seized and sold on execution.c

In addition to the ordinary remedies by action for violation of a patent right, the party in possession will be protected in the enjoyment of his right, by injunction, provided he has had exclusive possession of some duration. If the right be doubtful, and the patent be recent, the courts of equity will not interfere by injunction, until the patentee has first established the validity of his patent in a court of law.e The courts having cognizance

sop's case, cited in 2 H. Black's Rep. 489. Brunton v. Hawkes, 4 B. § Ald. 540. Minter v. Mewer, 1 Neville & Perry, 595.

■ Grant v. Raymond, 6 Peters' U. S. R. 220. Shaw v.

292.

b Odiorne v. The Amesbury Nail Factory, 2 Mason, 28.

Cooper, 7 Ibid.

• Hesse v. Stevenson, 3 B. & Puller, 565. Sawin v. Guild, 1 Gallison, 495.

d Washburn v. Gould, 3 Story's Rep. 122.

• Sullivan v. Redfield, 1 Paine's Rep. 441. Hill v. Thompson, 3 Merivale's R. 622. Livingston v. Van Ingen, 9 Johns. R. 507. 585. Washburn v. Gould, 3 Story's R. 122. The measure of damages is, in each case, a matter of fact for the discretion of the jury, under the circumstances; and the better opinion is, that it is not the legal operation of the verdict, in a case of piracy for making and using a patented machine, (whatever measure of damages may be given,) to transfer to the defendant the future right to the use of the machine. A verdict and judgment against a trespasser, for using the machine for one period, is no bar to a like action for the use in another and subsequent period. Whittemore v. Cutter, 1 Gall. Rep. 478. Earle v. Sawyer, 4 Mason's Rep. 12-14. The law of patents, in France, is founded on decrees of the constituent as

of the subject may award to the amount of treble the actual damages found by the jury, for making, using, or

sembly of December 31st, 1790, and January 7th and May 25th, 1791; and it assures to inventors of discoveries in the arts, for a certain period, the exclusive right to make and sell their discoveries; and it makes no distinction between Frenchmen and foreigners, or between residents and non-residents. The French law admits of three distinct kinds of patents, viz: Patents for inventions, patents for improvements, and patents for importations of foreign inventions unknown in France. Perpigna on the French Law of Patents, p. 23. 36. 47.84. A decree of Napoleon of the 13th of August, 1810, placed patents for importations on the same footing with patents for inventions, but that law is not now in force, and therefore patents for imported inventions cannot extend beyond the term fixed for the expiration of the privilege in the foreign country. Ibid. P. 84.85. The patent may be taken out for five, ten, or fifteen years, at the option of the patentee, under the charge of a tax proportioned to the time; and whoever first imports a foreign discovery or improvement, is entitled to the privilege of an inventor. The patentee must exhibit a true and accurate specification of the principles, plans, and models, of his discovery or importation. If he obtains a patent for the same object in a foreign country, he forfeits his French patent. The French jurisprudence, on this point, is very fully considered by A. C. Renouard, in his Traité des Brevets d' Invention, de Perfectionnement et d' Importation, Paris, 1825. The conditions necessary to the validity of a French patent, says M. Perpigna, are, 1. The invention must be lawful. 2. It must be new. 3. The inventor, improver or importer, must disclose at once in the specification his whole secret. 4. Whatever improvements he makes, he must declare them, and obtain additional patents for them. 5. After having taken a patent in France, the patentee must not take a patent for the same thing in a foreign country. 6. He must put his invention into practice within two years. See the French law and practice of patents for inventions, improvements and importations, by M. Perpigna, p. 62. The same questions concerning the priority of invention, and the requisite proofs, have disturbed the French tribunals, which have so long been agitated in ours. (Repertoire de Jurisprudence, tit. Brevet d'Invention. Questions de Droit, tom. v. 187.) The law as to patents for new inventions and discoveries, in the dominions of the Emperor of Austria, rests upon an imperial decree of December 6th, 1820. By that decree, foreigners, residents and non-residents, may obtain patents on the same terms as the native subjects. The objects of the patents are new discoveries; but those are considered as new, which, although known in other countries, are not at the time of the application in practical use in the Austrian dominions, nor specifically described in any printed work. The patents may be taken out for fifteen years, and the application for them must describe accurately and minute

selling the thing secured to another by patent; and all cases arising under the patent laws are made originally

ly the invention, discovery, or improvement, and be accompanied with models, if the nature of the case requires them. The patentee must put his invention into practice within one year from the date of the patent, or he forfeits it. See the substance of the Austrian decree, inserted in the Appendix to Mr. Phillips' Treatise on Patents. In the same appendix is also given the patent law of the Netherlands, made in 1817. It is very analogous in its chief provisions to the act of Congress of 1836. It allows patents not exceeding fifteen years to the persons who have made any invention or essential improvement, (not already used in the kingdom by another person, or described in any work printed and published) in any branch of arts or manufactures, and also to those who shall first introduce or practice in the kingdom, any invention or improvement made in foreign countries. Patents for foreign inventions or improvements, and under foreign patent, may be granted for the unexpired term, but the thing must be manufactured in the kingdom. A subsequent patent in a foreign country vacates the patent, and the thing patented must be put in practice within two years. The Spanish patent law is founded on a decree of the king and cortes, of October 14th, 1820. It grants a monopoly of any art or manufacture, to the inventor, for ten years; to him who improves it, for six years; and to him who imports it, for five years. The law is well drawn and guarded, and is annexed to the treatise of M. Renouard.

The valuable work of Mr. Phillips, of Boston, on The Law of Patents for Inventions, is an elaborate production, and contains a critical examination of all the English and American cases, applicable to the subject; and they are well digested. He has likewise incorporated in his Treatise much interesting information on the French law of patents, drawn from the excellent treatise of M. Renouard; so that the work gives us an enlarged and accurate survey of the English and French as well as American law of patents.

It may be here observed, that although a merchant or trader has no patent right relative to the disposition of his goods and manufactured articles, yet the law will throw a protection over the particular marks or signs he may habitually affix to his goods, to distinguish them from similar articles belonging to others; and if another person fraudulently uses those marks and signs, with intent to injure him in his trade, he will be entitled to a special action on the case at law for damages, and to a much more prompt and effectual remedy in equity by injunction to restrain such a fraudulent invasion of his private right. By statute of New-York of May 14, 1845, and of New-Jersey 1847, to counterfeit or forge any private stamp or label with fraudulent intent, is made penal. Popham's Rep. 144, where Dodderidge, J., stated a case of a successful action in 22 Eliz. against a clothier by another clothier who used his marks to ill-made cloth. Sykes v. Sykes,

cognizable, as well in equity as at law in the circuit court of the United States, and in the district courts, having the jurisdiction of circuit courts, with the right to a writ of error or appeal as in other cases, to the supreme court of the United States, a

*373 *(2.) As to copy-rights of authors.b

The authors of books, maps, charts and musical compositions, and the inventors and designers of prints, cuts and engravings, being citizens of the United States, or residents therein, are entitled to the exclusive right of

3 B. & Cressw. 541. Blofield v. Payne, 4 B. & Adolp. 410. Knott v. Morgan, 2 Keen's Rep. 213. Motley v. Downman, 3 M. & Cr. 1. Tay. lor v. Carpenter, N. Y. Ch. December 3d, 1844. Coats v. Holbrook, before Ass. V. Ch. Sandford, 3 N. Y. Legal Observer, 404. 2 Sandford's Ch. R. 586. S. C. 603.

Act of Congress, July 4, 1836, ch. 357. sec. 14. 17.

Since the last edition of this work, George Ticknor Curtis, Esq. already favorably known to the profession by his work on Merchant Seamen, has published an essay on the law of copyright in books, dramatic and musical compositions, letters, and other manuscript engravings and sculpture, as enacted and administered in England and America." It is an admirable work, and worthy of the attentive perusal of the professional reader.

• A bill was introduced into the Senate of the United States, in February, 1837, by Mr. Clay, extending the privilege of the act to the non-resident subjects of Great Britain and France, in respect to future publications. It was stated that as American authors could be protected abroad in their productions, under the copy-right laws of those two kingdoms, such an extension of the privilege was called for on a principle of reciprocity, as well as of justice. The bill, we regret to say, did not pass into a law. Mr. Lieber, in a Letter to Mr. Preston, on International Copy-right, (1840,) has urged the justice of such a law with his usual ability and force. In Bentley v. Foster, 10 Simon, 329, the vice-chancellor of England held that an alien, resident abroad, who composes a work abroad and publishes it first in England, was entitled to the protection of copy-right. By the statute of 7 and 8 Vict. c. 69, the Queen in council may grant a copyright in any hook, print or works of art which at the time of such order shall be first published in any foreign country, to the authors &c. and their representatives and assigns for a term not exceeding that of the author's copy-right therein in England.

The earliest instance of a protected copy-right for printing books, was granted by the Senate of Venice, in 1469; and as early as 1486, a cen

printing, reprinting, publishing and vending them, for the term of twenty-eight years, from the time of recording the title thereof; and if the author, inventor or designer, or any of them, where the work was originally composed and made *by more than one *374 person, be living, and a citizen of the United States, or resident therein, at the end of the term, or, being dead, shall have left a widow, or child or children, either or all of them living, she or they are entitled to the same exclusive right for the further term of fourteen years, on complying with the terms prescribed by the act of congress. Those terms are, that the author or proprietor, before publication, deposit a printed copy of the title of the book, map, chart, musical composition, print, cut or engraving, in the clerk's office of the district wherein he resides, and which copy is to be recorded; and that he cause to be inserted on the title-page, or the page next following, of each and every edition of the book, and cause to be impressed on the face of the map, chart, musical composition, print, cut or engraving, or upon the title or frontispiece of a volume of the same, the following words, "Entered, according to the act of congress, in the year by A. B., in the clerk's office of the district court of -," (as the case may be.) He is then, within three months after publishing the book, or other work, as aforesaid, to cause to be delivered a copy of the same to the clerk of the said district court, who is once in every year to transmit a certified list of all such records of copyright, and the several books or other works deposited as aforesaid, to the secretary of state, to be preserved in his office. The violation of the copy-right thus duly secured, is guarded against by adequate penalties and forfeitures.

On the renewal of the copy-right, the title of the work, must be again recorded, and a copy of the work deliv

sorship of the press or restraint on the sale of printed books, was introduced in Germany. Hallam's Introduction to the Literature of Europe, vol. i. p. 344. 348.