# 1911 Encyclopædia Britannica/Patents

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​PATENTS, properly documents conferring some privilege, right, &c., short for “letters patent” (q.v.). Patents for inventions, instruments which formerly bore the great seal of the United Kingdom, are now issued at the Patent Office in London under the seal of that office. By their means inventors obtain a monopoly in their inventions for fourteen years, a term which, if insufficient to remunerate the inventor, can be extended.
This monopoly is founded on exactly the same principle as the copyright enjoyed by authors and artists. There are persons who argue that no such privilege should be permitted; there are others who think that the most trifling exertions of the inventive faculties should be protected. The right course clearly lies between these extremes. To grant a very long term of exclusive possession might be detrimental to the public, since it would tend to stop the progress of improvement. A limited property must therefore be allowed—large enough to give the inventor an opportunity of reaping a fair reward, but not barring the way for an unreasonable period. And, when this compromise has been decided on, it will be seen how difficult it may be to determine beforehand what is the real merit of an invention, and apportion the time to that merit. Hence it has been found necessary to allot one fixed period for all kinds of inventions falling within the purview of the patent laws.
United Kingdom.–Formerly the reigning prince considered himself entitled, as part of his prerogative, to grant privileges of the nature of monopolies to any one who had gained his favour. These grants became so numerous that they were oppressive and unjust to various classes of the commonwealth; and hence, in the reign of James I., a statute was wrung from that king which declared all monopolies that were grievous and inconvenient to the subjects of the realm to be void. (See Letters Patent; Monopoly.) There was, however, a special exception from this enactment of all letters patent and grants of privilege of the “sole working or making of any manner of new manufacture within the realm to the true and first inventor of such manufacture, which others at the time of making such letters patent and grants should not use, so they be not contrary to law, nor mischievous to the state by raising of the prices of commodities at home or hurt of trade or generally inconvenient.” Upon these words hangs the whole law of letters patent for inventions. Many statutes were afterwards passed, but these were all repealed by the Patent Act of 1883 (46 & 47 Vict. c. 57), which, besides introducing a new procedure, modified the law in several particulars. Subsequently acts amending the law were passed in 1885, 1886, 1888, 1901, 1902 and 1907. These acts, with the exception of certain sections of the act of 1883, were repealed by a consolidating act, the Patents and Designs Act 1907, which also introduced new provisions into English patent law. Where the law is not expressly laid down by act of parliament, it has to be gathered from the numerous decisions of the courts, for patent law is to no inconsiderable extent “judge-made law.”
The inventions for which patents are obtained are chiefly either vendible articles formed by chemical or mechanical operations, such as cloth, alloys, vulcanized india-rubber, &c., or machinery and apparatus, or processes. It may be remarked here that a scientific principle cannot form the subject of a valid patent unless its application to a practical and useful end and object is shown. An abstract notion, a philosophical idea, may be extremely valuable in the realm of science, but before it is allowed to form a sound basis for a patent the world must be shown how to apply it so as to gain therefrom some immediate material advantage. With regard to processes, the language of the statute of James has been strained to bring them within the words “any manner of new manufacture,” and judges on the bench have admitted that the exposition of the act has gone much beyond the letter. However, it is undoubted law that a process is patentable; and patents are accordingly obtained for processes every day.
The principal classes of patentable inventions seem to be these: (1) new contrivances applied to new ends, (2) new contrivances applied to old ends, (3) new combinations of old parts, whether relating to material objects or processes, (4) new methods of applying a well-known object.
With regard to a patent for the new application of a well-known object it may be remarked that there must be some display of ingenuity, some amount of invention, in making the application, otherwise the patent will be invalid on the ground that the subject-matter is destitute of novelty. For example, a fishplate, used before the introduction of railways to connect ​ wooden beams could not be patented to connect the rails of a railway (Harwood v. Great Northern Railway Co., 1860–1865, 11 H. L. C. 654); nor can a spring long used in the rear of a carriage be patented for use in the front (Morgan v. Windover, 1890, 7 R. P. C. 131). But a small amount of invention will suffice, so long as the improvement is manifest, either as saving time or labour (Rickmann v. Thierry, 1896, 14 R.P.C. 105: Patent Exploitation, Ltd. v. Siemens & Co., 1904, 21 R.P.C. 549).
Whatever be the nature of the invention, it must possess the incidents of utility and novelty, else any patent obtained in respect of it will be invalid. The degree of utility need not, however, be great. As to novelty, this is the rock upon which most patents split; for, if it can be shown that other persons have used or published the invention before the date of the patent, it will fall to the ground, although the patentee was an independent inventor deriving his ideas from no one else. The difficulty of steering clear of this rock will be apparent at once. Suppose A in London patents an invention the result of his own ingenuity and patient study, and it afterwards appears that B, in some distant part of the kingdom, had been previously openly using the same thing in his workshop, A’s patent is good for nothing. Thus, where the patent sued on was a lock, it was proved that a similar lock had been in use on a gate adjoining a public road for sixteen years prior to the patent, which was accordingly invalidated (Carpenter v. Smith, 1842, 1 Web. P.C. 540). It is therefore a very frequent subject of inquiry, whether an invention has been previously used to such an extent as to have been publicly used in the sense attached by the courts to this phrase. But whereas “user” in public is sufficient prior publication to invalidate a subsequent patent for the invention so used, publication in books, &c., will not be a bar to novelty unless its effect is to make the invention actually a part of public knowledge; and in dealing with alleged anticipations by patents that have never come into general use the courts will not invalidate a subsequent patent unless a person of ordinary knowledge of the subject, on having the alleged anticipation brought under his notice, would at once perceive, understand, and be able practically to apply the invention without making experiments or seeking for further information. The inventor himself is not allowed to use his invention, either in public or secretly, with a view to profit, before the date of the patent. Thus, if he manufactures an article by some new process, keeping the process an entire secret, but selling the produce, he cannot afterwards obtain a patent in respect of it. If he were allowed to do this he might in many cases easily obtain a monopoly in his invention for a much longer period than that allowed by law (Morgan v. Seaward, 1837, 1 Web. P.C. 192). The rule that an inventor’s use of the invention invalidates a subsequent patent does not, however, apply to cases where the use was only by way of experiment with a view to improve or test the invention (Elias v. Grovesend Tinplate Co., 1890, 7 P.O.R. 466). And it has been repeatedly decided that the previous experiments of other persons, if incomplete or abandoned before the realization of the discovery, will not have the effect of vitiating a patent. Even the prior discovery of an invention will not prevent another independent discoverer from obtaining a valid patent if the earlier inventor kept the secret to himself, the law holding that he is the “true and first inventor” who first obtains a patent.
The Patents Act 1883 provided that the exhibition of an invention at an industrial or international exhibition certified as such by the Board of Trade, or the publication of any description of the invention during the period of the holding of the exhibition, or its use for the purpose of the exhibition in the place where it is held, or during the period of the exhibition by any person elsewhere, without the privity or consent of the inventor, should not prejudice the right of the inventor or of his legal personal representative to apply for and obtain a patent, or the validity of any patent granted on the application, provided that two conditions are complied with, viz. (a) the exhibitor must, before exhibiting the invention, give the Comptroller-General a prescribed notice of his intention to do so; and (b) the application for the patent must be made before or within six months from the date of the opening of the exhibition. The Patents Act 1886, enabled the Sovereign, by order in council, to extend the provision above mentioned to industrial and international exhibitions held out of the United Kingdom. The act of 1907 re-enacted these provisions (§§ 45, 59). When an invention is the joint production of more persons than one, they must all apply for and obtain a joint patent, for a patent is rendered invalid on showing that a material part of the invention was due to some one not named therein. The mere suggestion of a workman employed by an inventor to carry out his ideas will not, however, require that he should be joined, provided that the former adds nothing substantial to the invention, but merely works out in detail the principle discovered by his employer.
Procedure.—The attributes of novelty and utility being possessed in due degree by an invention, it remains to put in motion the machinery for its protection. The Patents Act 1907, re-enacting former provisions, requires an application to be made in a prescribed form (the forms and stamps are on sale at all postal money order offices in the United Kingdom), and left at or sent by post to the patent office in the prescribed manner. The application must contain a declaration that the applicant is the true and first inventor, and it must be accompanied by either a provisional or complete specification. A provisional specification describes the nature of an invention, and a complete specification particularly describes and ascertains the nature of the invention and the manner in which it is to be performed. Since the introduction of the patent specification, it has been necessary that an invention protected by patent should be accurately described by the inventor. Formerly, when the condition on which letters patent issued was that the patentee should file a specification completely describing the nature of his invention within a certain time after the grant, the function of giving the necessary preliminary information on the subject was to some extent discharged by the title; at any rate, the validity of the grant was liable to be objected to on the ground of the title being too general. Under the present law the task of preliminary disclosure falls to the provisional specification, introduced by the Patent Law Amendment Act 1852, and continued by the Patents Acts of 1883 and 1907, although a patentee may, under the latter statutes, dispense with a provisional specification if he thinks proper to file a complete one in the first instance. Where however, these two specifications are filed, it becomes of vital moment to an inventor that the true relation between them should be maintained as defined above. The object of the provisional specification is to secure immediate protection, and to enable a patentee to work at and improve his invention without the risk of his patent being invalidated by premature publication. He is therefore entitled to embody in his complete specification any improved method of working his invention which he may discover in the interval; and he is indeed bound to do so, since, as we have said, the price that a man who desires a patent has to pay to the public for the privilege is that he should make a full disclosure of his invention in his complete specification. But there is a limit to what the patentee may do in this respect. He must not describe in his complete specification an invention different from that declared in the provisional. If he falls into this error there is said to be a “variance” or “disconformity” between the two specifications. The Patents Act 1883, § 9, made it the duty of the examiners of the Patent Office to consider the question of disconformity between specifications on applications for patents, but the only power the comptroller had, on discovery of disconformity, was to refuse to accept the specification until the disconforming parts had been eliminated. By the act of 1907, § 6, he may now refuse to accept the complete specification until it has been amended to his satisfaction, or (with the consent of the applicant) cancel the provisional specification and treat the application as having been made on the date at which the complete specification was left. Moreover, if the complete specification includes an invention not included in the provisional specification, the application may proceed as a whole, or may be divided, and the claim for the additional invention included in the complete specification be regarded as an application for that invention made on the date at which the complete specification was left. An act of 1902 (which, with the exception of a portion dealing with compulsory licences, came into operation on the 1st of January 1905) provided for an examination or search as to novelty, such investigation dealing with British complete specifications published and dated within fifty years prior to the date of the application. This search was re-enacted by the act of 1907 (§ 7) and power given to the comptroller to refuse the grant of a patent in cases in which the invention had been wholly and specifically claimed in specifications to which his search had extended.
The term for which a patent is originally granted is fourteen years, but a patentee may, after advertisement according to the rules of the Supreme Court, petition for a further term. The court, in considering its decision, takes regard of the nature and merit of the invention in relation to the public, of the profits made by ​ the patentee as such, and of all the circumstances of the case. If it appears to the court that the patentee has been inadequately remunerated by his patent, it may extend the term of the patent to a further term not exceeding seven or, in exceptional cases, fourteen years, or may order the grant of a new patent for a certain term, with any restrictions or provisions it may think fit (Act of 1907, § 18).
Patent privileges, like most other rights, can be made the subject of sale. Partial interests can also be carved out of them by means of licences, instruments which empower other persons to exercise the invention, either universally and for the full time of the patent (when they are tantamount to an assignment of the patentee’s entire rights), or for a limited time, or within a limited district. By an exclusive licence is meant one that restrains the patentee from granting other licences to any one else. By means of a licence a patentee may derive benefit from his patent without entering into trade and without running the risks of a partnership.
One of the regulations of the act of 1883 was that a patentee could be compelled by the Board of Trade to grant licences to persons who were able to show that the patent was not being worked in the United Kingdom, or that the reasonable requirements of the public with respect to the invention could not be supplied, or that any person was prevented from working or using to the best advantage an invention of which he was possessed. This regulation, however, remained practically a dead letter, for only three applications were made between the years 1883 and 1897, and these never proceeded to a hearing. After 1897 a few petitions were heard, but even so late as in 1908 there was only one petition and that was withdrawn by agreement between the parties. By § 3 of the act of 1902, the hearing of petitions for a grant of compulsory licences was transferred to the judicial committee of the privy council, but the act of 1907 substituted the High Court as the tribunal in the place of the judicial committee. It also laid down that the reasonable requirements of the public should not be deemed to be satisfied: (a) if by reason of the default of the patentee to manufacture to an adequate extent and supply on reasonable terms, the patented article or any parts thereof necessary for its efficient working or to carry on the patented process to an adequate extent or to grant licences on reasonable terms, any existing trade or industry or the establishment of any new trade or industry in the United Kingdom is unfairly prejudiced, or the demand for the patented article is not reasonably met; or (b) if any trade or industry in the United Kingdom is unfairly prejudiced by the conditions attached by the patentee before or after the passing of the act to the purchase, hire or use of the patented article or to the using or working of the patented process. Clause b is an endeavour to remedy an abuse by which patentees bound down purchasers and licences by all kinds of conditions. Section 38 of the act of 1907 contains also a further remedy, making it unlawful in any contract in relation to the sale or lease of, or licence to use or work, any patented article or process to insert conditions prohibiting or restricting the use of the patent or process from using articles supplied by a third person or requiring him to use other articles not protected by the patent. Such conditions are declared “null and void as being in restraint of trade and contrary to public policy.”
Another new and very important provision of the act of 1907 is that dealing with the revocation of patents worked outside the United Kingdom. It may be stated here that in the year 1908 out of a total number of 16,284 patentees, 2819 were resident in the United States, 2516 in Germany, 822 in France, 334 in Austria-Hungary, 200 in Switzerland, 166 in the Australian Commonwealth, 159 in Belgium, 155 in Canada, 139 in Sweden and 134 in Italy. It had been a common practice to take out licences in the United Kingdom (especially in the dyeing industry) in order to close the British market to all except the patentees and their licensees, the patented articles or processes being worked entirely abroad. Section 27 of the act of 1907 enacted that at any time not less than four years after the date of a patent and not less than one year after the passing of the act, any person might apply to the comptroller for the revocation of a patent on the ground that the patented article or process is manufactured or carried on exclusively or mainly outside the United Kingdom. The comptroller is given power to make an order revoking the patent forthwith or after a reasonable interval, unless the patentee can show satisfactory reasons. The insertion of this provision resulted in the establishment of many factories in the United Kingdom.
Legal Remedies.—A patentee’s remedy for an infringement of his rights is by civil suit, there being no criminal proceedings in such a case. In prosecuting such suit he subjects those rights to a searching examination, for the alleged infringer is at liberty to show that the invention is not new, that the patentee is not the true and first inventor, &c., as well as to prove that the alleged infringement is not really an infringement. But it may here be remarked that a patentee is not bound down (unless he chooses so to be) to the precise mode of carrying the invention into effect described in the specification. If the principle is new, it is not to be expected that he can describe every mode of working it; he will sufficiently secure the principle by giving some illustrations of it; and no person will be permitted to adopt some mode of carrying
the same principle into effect on the ground that such mode has not been described by the patentee. On the other hand, when the principle is not new, a patentee can only secure the particular method which he has invented, and other persons may safely use other methods of effecting the same object. Instances of this occur every day; and it is well known that scores of patents have been taken out for screw-propellers, steam-hammers, water-meters, &c., each of which is limited to the particular construction described, and cannot be extended further. Again, where the invention patented consists of a combination of parts, some old and some new, the whole constituting a new machine or a new process, it is not open to the world to copy the new part and reject the rest. A man is not permitted to allege that the patent is for a combination, and that, the identical combination not having been used, there has been no infringement. If he has borrowed the substance of the invention, it will be held that he has infringed the patent. At common law a person who, alleging that he has a patent, threatens his rivals in trade, is liable to an action for damages, but the plaintiff cannot succeed without showing that the threats were made maliciously. The Patents Act 1883 provided another remedy what is known as “the threats action.” This has been incorporated in the act of 1907, § 36. The statute makes the good faith of the patentee threatening legal proceedings no answer to an action brought against him by any person aggrieved by his threats if the acts complained of are not in fact an infringement of the patent, and if the patentee fails with due diligence to commence and prosecute an action for infringement.
Extent and Construction.—The patent when sealed is to have effect in the United Kingdom and the Isle of Man. The act of 1907, unlike the Patent Law Amendment Act of 1852, does not extend the monopoly to the Channel Islands.
The patent business of the United Kingdom is transacted at the Patent Office in London under the superintendence of the comptroller, an officer appointed by the Board of Trade, under whose direction he performs his duties. At this office is kept a register of all patents issued, of assignments of patents, licences granted under them, &c. An illustrated journal of patent inventions is published at the same office, where printed copies of all specifications can also be obtained. The fees payable to government on patents were considerably reduced by an order of the Board of Trade which came into operation on the 1st of October 1892, and may now be paid by convenient annual instalments. The following are the present fees: before the expiration of the 4th year from the date of the patent, £5 instead of £10; of the 5th year, £6 instead of £10; of the 6th year, £7 instead of £10; of the 7th year, £8 instead of £10; of the 8th year, £9 instead of £15; of the 10th year, £11 instead of £20; of the 11th year, £12 instead of £20; of the 12th year, £13 instead of £20; and of the 13th year, £14 instead of £20. The preliminary fees amounting to £4 were left untouched by the order but under the Patent Rates of 1905 an additional fee of £1 is payable on the sealing of the patent. The entire cost of a patent is now reduced from £154 to £100.
A new Patent Office was constructed on the site of the old buildings, the frontage extending from Southampton Buildings into Staple Inn. The number of applications for patents, which sprang from 5993 in 1883 to 17,110 in 1884, culminated in a total of 30,952 for the year 1892, since which date a steady decline set in down to 1900, when the number was 23,924. But the numbers went up again, reaching 30,030 in 1906, but only 28,598 in 1908. The number of patents sealed on application for a given year shows less variation, the minimum being 8775 for 1885 against 16,060 in 1907. The proportion of seals to applications varies from about 46 to 50%. The receipts from patent fees in 1908 were £262,890, against a total expenditure of £179,531.
The official publications of the Patent Office deserve some notice, as, in the absence of official investigation into novelty, the onus of search rests with the applicant or his agent. The procedure has been greatly simplified by the publication, on a uniform system and at a low rate (1s. per volume), of illustrated abridgments of specifications. From 1877 practically to date the searcher obtains a chronological digest of all specifications falling within a given class. To these classes there is a reference index, known as the “abridgment class and index key,” which at once directs the searcher to his proper class and index heading.
Patent Agents.—Patents are frequently obtained through the intervention of persons termed patent agents, who devote themselves to this branch of business. Their position is now regulated by statute. By the Patents Act 1888, it was provided that no person should, after July 1, 1889, be entitled to describe himself (and whoever does so knowingly incurs liability to a maximum penalty of £20) as a patent agent whether by advertisement, description of his place of business or otherwise, without being registered as such in pursuance of the act. But the act preserves the right to registration of every person who, to the satisfaction of the Board of Trade, shows that he had been bona fide practising as a patent agent before it passed. The Board of Trade is empowered by this statute to make from time to time general rules for the purpose of carrying out its provisions, and by rules issued in 1889, and reissued in 1891, the Board of Trade delegated to the Institute of Patent Agents (which obtained a royal charter in ​ 1891) the care of the register of patent agents and the duty of holding the necessary examinations for entrance into the profession.
British Dominions.—The following notes on colonial law give the salient facts. Prior to 1852 British letters patent extended to all the colonies, but the act of 1852 restricted the rights granted to the United Kingdom, Channel Islands and Isle of Man.
Australia.—The Commonwealth Acts are No. 21 of 1903, and No. 19 of 1906. They are founded on the English act of 1883 and amending acts. They provide for a department of patents controlled by a commissioner “under the minister” (§ 10 of 1903). Any person, whether a British subject or not, may apply for a patent (§ 32 of 1903). The term of a patent is 14 years (§ 64 of 1903). The Commonwealth or a state may acquire patents compulsorily (§§ 93, 94 of 1903). The act creates a new class of “patent attorneys” (§ 101, 1903). There is an examination as to novelty (§ 41 of 1903). The renewal fees amount to a sum of £5 before the end of the 4th year, and £5 before the end of the 7th year from the date of the patent.
Bahama Islands.—The law is regulated by the following acts of the colony: 52 Vict. c. 23; 53 Vict. c. 2; 54 Vict. c. 12; and 63 Vict. c. 3. Duration of patent 7 years, with power in governor to renew for another 7 years, and thereafter for a third period of 7 years. The fees are £10 on filing specification, £10 for second renewal and £20 for third. Apparently there is no preliminary examination as to novelty.
Barbadoes.—Acts of 1903 (No. 31) and of 1908 (No. 10). Duration of patent 14 years. The governor in council has power to grant compulsory licences. Fees are £2, 10s. on filing specification, £50 before the end of the 4th year and £100 before the end of the 7th year. No preliminary examination as to novelty.
Bermuda.—Act of 1902 (No. 51), on the lines of that of Trinidad.
British Guiana.—The law is regulated by ordinance No. 31 of 1902 and is practically the same as the English act of 1883. The fees are $15 on filing specification and $100 before the end of 7 years.
British Honduras.—The law of the 10th of September 1862 has been re-enacted with slight modifications (see supplement to Patent Laws of the World, No. 4, 1900). There is no examination as to novelty.
British India.—The law is now governed by Act 5 of 1888, which applies to the whole of British India. Duration of patent is 14 years. A preliminary examination into novelty might apparently be ordered. The following taxes are payable: annual sums of Rs. 50 from the 4th to the 8th year, and of Rs. 100 from the 8th to the 13th year of the term.
British New Guinea.—The Queensland Patents Acts, No. 13 of 1884 and No. 5 of 1886, have been adopted. See British New Guinea ordinance No. 6 of 1889, schedule A.
British North Borneo.—Straits Settlements law (No. 12 of 1871), adopted by Patents Proclamation 1887 (No. 1 of 1887).
Canada.—Patent legislation belongs exclusively to the Dominion Parliament [B.N.A. Act 1867, § 91 (22)]. The existing acts are c. 61 of 1886; 55 & 56 Vict. c. 24; 56 Vict. c. 34; and act of 1903. The duration of the patent is 18 years. At the time of application the applicant may pay the full fee required for that term (viz. $60) or the partial fee required for the term of 6 years ($20) or for the term of 12 years ($40). If a partial fee only is paid, the amount is stated in the patent, and the patent ceases at the end of the term covered by such partial payment, unless before the expiration of such term the patentee pays the fee required for the further term of 6 or 12 years, viz. $20 in the former case and $40 in the latter. There is a preliminary examination into novelty by examiners, with an appeal from the decision of the commissioner of patents to the governor in council. The patent is void unless it is worked in Canada within 2 years, or if after the expiration of 12 months, or any authorized extension of either of these periods, the patentee imports the invention into Canada, but conditions may be substituted for condition as to manufacture in Canada, as, for example, a licence to another to manufacture, &c.
Cape of Good Hope.—The law is regulated by act No. 17 of 1860. No. 24 of 1902 and No. 28 of 1904. There is no preliminary examination into novelty, and the act contains no provisions for compulsory working, or as to the importation of patented articles from abroad.
Ceylon.—The law is now regulated by act 15 of 1906. The duration of the patent is 14 years, with power vested in the governor in council to grant extensions of 7 and 14 years. There is a preliminary examination as to novelty, but there are no provisions as to compulsory working or the importation of patented articles from abroad. The renewal fees are Rs. 50 annually from before the expiration of the 4th to before the expiration of the 8th year from the filing of the specification, Rs. 100 after the expiration of the 8th and before the expiration of the 9th year, Rs. 150 after the expiration of the 9th and before the expiration of the 10th year, and Rs. 200 annually after the expiration of the 10th year to before the expiration of the 13th year.
Channel Islands.—These are not now included in grant of letters patent. See form of grant, schedule I., form D., Patents Act 1883.
Falkland Islands.—By ordinance No. 2 of 1903 letters patent for any invention may be granted to any person holding in the United Kingdom a valid patent for any invention or to any person to whom all interest in the patent has been assigned. The fee on application is £5.
Fiji Islands.—The law depends on ordinances No. 3 of 1879 and 7 of 1882, and order of December 29, 1890. The duration of the patent is 14 years. There is no preliminary examination.and there are no provisions as to compulsory working or importation from abroad. The patent is not subject to any payment after issue. A fee of 5 guineas is payable on deposit of petition and specification. The fee for provisional protection is 5 guineas; on obtaining letters patent the applicant pays 10 guineas.
Gambia.—An ordinance (No. 5 of 1900) is practically identical with the English act of 1883. No. 5 of 1904 made international arrangements for protection of patents.
Gibraltar.—There is no patent law in Gibraltar, but special ordinances are sometimes passed extending the privileges of British patentees to the dependency for the unexpired residues of the original terms. See as examples No. 5 of 1890, No. 1 of 1896, and No. 1 of 1898.
Gold Coast.—The law is now regulated by the Patents Ordinances 1900 to 1906, which closely resemble the Imperial Act.
Hong-Kong.—The law is regulated by ordinance No. 2 of 1892. The inventor or assignee of any invention patented in England may obtain protection in the colony for the unexpired residue of the original term. If the English patent is extended by the advice of the Judicial Committee, an extension of the colonial patent may be obtained, or a new patent granted for the extended period. A fee of $25 is payable on grant of patent, and another fee of the same amount on grant of extension or original letters in lieu of extension. There is no preliminary examination, and there are no provisions as to compulsory working or importation from abroad.
Jamaica.—The law is still in substance governed by c. 30 of 1857. But under ordinance No. 15 of 1891 the stamp duty on letters patent is now £2 instead of £6, 10s., and there is no longer any fee payable on the reference to the attorney-general. There is no preliminary examination as to novelty, and there are no provisions as to importation from abroad.
Lagos.—Ordinances of 1900 (No. 17) and 1902 (No. 2) introduce substantially the English law.
Leeward Islands.—Act No. 3 of 1906 has adopted the English act of 1883. The fees are on filing specification £2, 10s.; at end of 4th year £20; at end of 7th year £40.
Malta.—The law is governed by ordinance No. 11 of 1899 and No. 7. of 1907, the duration of the patent is 14 years. There is no express provision for a preliminary examination into novelty. Provision is made for compulsory assignation or licence, where the invention has not been put into use within 3 years subsequent to the grant or its working has been suspended for 3 years continuously. The annual fees are £5 before the expiration of the 4th year from the date of the patent; £6 before the expiration of the 5th; £7 and £8 respectively before the expiration of the 6th and 7th years; £9 and £10 before the expiration of the 8th and 9th; and from £11 to £14 before the expiration of the 10th, 11th, 12th and 13th years.
Mauritius.—The law is still regulated by ordinance No. 16 of 1875. There is no preliminary examination as to novelty, and there are no provisions for compulsory working or importation from abroad.
Natal.—The law is still regulated by No. 4 of 1870. But certain details of practice are amended by No. 2 of 1895. There is no preliminary examination as to novelty, and there are no provisions as to compulsory working or importation from abroad.
Newfoundland.—The law is contained in the Consolidated Statutes, t. xii. c. 109. There is no preliminary examination into novelty. In addition to the office fees, the patentee is required to deposit with the colonial secretary the sum of $25, to be paid by him to the receiver-general for the use of the colony.
New Zealand.—The law now depends on No. 12 of 1889, amended in details by No. 8 of 1897. The duration of a patent is 14 years. There is no preliminary examination as to novelty, and there are no provisions as to compulsory working or importation from abroad. The following fees are payable: £2 on obtaining letters patent, £5 before the expiration of the 4th year and £10 before the expiration of the 7th.
Nigeria, Northern.—No. 12 of 1902 introduces practically the English law of 1883.
Orange River Colony.—Up to the outbreak of war in 1899 the law was regulated by ordinance No. 10 of 1888 and no change has yet been made. The term of a patent was 14 years. No preliminary examination as to novelty. Compulsory licences might be obtained. No prohibition of the importation of patented articles. The fee for signing and sealing the patent was not less than £10 nor more than £50. Taxes of £5 and £10 were payable before or at the expiration of the 3rd and 7th years of the term respectively.
Rhodesia, Southern.—Ordinance No. 7 of 1904 adopts practically the English law.
​ St Helena.—The law is regulated by ordinance No. 3 of 1872. The grantee of an English patent, or his representatives, can have the grant extended to the colony. All cases of doubt and difficulty not provided for by the laws of the colony are governed by the law in force in England. A fee of one guinea is payable on filing copy of letters patent and specification with the registrar of the Supreme Court.
Sierra Leone.—No special regulations exist, but an ordinance practically identical with that of the Gold Coast is being adopted.
Straits Settlements.—The law is prescribed by ordinance No. 12 of 1871. The duration of a patent is 14 years. There is no preliminary examination as to novelty, and there are no provisions as to compulsory working or importation from abroad. There is a stamp duty of $50 on the petition. No renewal fees are payable.
Transvaal Colony.—Proclamations Nos. 22 and 29 of 1902 introduce substantially the English law.
Trinidad and Tobago.—The law is regulated by ordinance No. 10 of 1900 and No. 13 of 1905. The duration of the patent is 14 years. There is no preliminary examination into novelty, and there are no provisions as to compulsory working or importation from abroad. A fee of £10 is payable on application for a patent.
Turks and Caicos Islands.—The law of Jamaica has been extended to these islands by No. 7 of 1897. See supplement to Patent Laws of the World, No. 3 of 1900.
Windward Islands.—In the Windward Islands other than Barbadoes, viz. Grenada, St Lucia and St Vincent, patents for invention were granted until recently only by special ordinances. See, e.g. St Lucia, ordinance No. 41 of 1875 (Tooth’s patent). A stamp duty of £10 was payable in this island on letters patent for inventions (No. 6 of 1881, schedule). But ordinances based on the Imperial Act have now been passed, St Vincent (No. 5 of 1898). Grenada (No. 4 of 1898) and St Lucia (No. 14 of 1899).
Foreign Patent Laws.—For the text of these see Patent Laws of the World, ed. 1899 and supplemental volumes. But the following are the essential facts.
Algeria.—French law applied by decree of June 5, 1850.
Argentine Republic.—The law of October 11, 1864, is still in force. There is no provision as to importation from abroad.
Austria.—A law of January 11, 1897, came into force on January 1, 1899. The principal changes introduced by this measure were these. A strict preliminary examination was made into novelty. The term of the patent was fixed at 15 years, and besides an application fee of 10 florins, annual fees were imposed rising from 20 florins for the 1st year to 340 florins for the 15th. The period for compulsory working was raised from i year to 3 years from the date of the publication of the grant of the patent in the patent journal. Provision was made for the conversion of patents under the old law of August 15, 1852 (extended to Hungary by law of June 27, 1878, and to Bosnia and Herzegovina by law of December 20, 1879) into patents under the present law.
Belgium.—The law is still governed by the law of May 24, 1854. Patents are granted, as in France, without guarantee of novelty.
Bolivia.—The patent law depends on a law of May 8, 1858. The duration of the grant is in the case of a patent of invention not less than 10 nor more than 15 years; in the case of an imported invention, 3 years if its establishment requires an outlay of $25,000, if it reaches $50,000, 6 years, and if $100,000 or more, 10 years. The novelty neither of patents for invention nor of patents for imported inventions is guaranteed. The patent lapses unless the invention is put into complete practice within a year and a day from the date of the privilege, unless the omission is excused by justifiable causes according to law.
Brazil.—Patents are granted under the law of October 14, 1882. The patent lapses unless the invention is brought into effective use within 3 years from the date of the grant, or if such use is suspended for more than a year, except by reason of force majeure admitted by government to be a sufficient excuse. Besides expenses and fees, patents of invention are subject to an annual and progressive tax, commencing at $20 and increasing at the rate of $10 a year. The patents issued are without guarantee of novelty or utility.
Chile.—The law is regulated by the law of September 9, 1840, decree of August 1, 1851, and laws of July 25, 1872, January 20, 1883, and January 20, 1888. There is a preliminary examination as to novelty and utility. Though the duration of a patent does not ordinarily exceed 10 years, the term may be extended to 20 years by the president of the republic, if the report of the experts on the nature and importance of the invention seem to justify it. There are no provisions as to importation from abroad.
Colombia.—Patents are granted under law No. 35 of 1869 and decree No. 218 of 1900. The term varies from 5 to 20 years at the option of the applicant. There is no preliminary examination as to novelty, and there is no provision as to importation from abroad. A patent for a new industry is void when such industry is idle for a whole year, unless inevitable circumstances have intervened. An applicant pays a sum of 20 pesos, which is forfeited if the patent is refused, and taken in part payment of the patent fee if it is granted. The patent tax is from 5 to 20 pesos a year for every year of the privilege.
Congo.—Patents arc issued under a law of October 29, 1886, and a decree of October 30, 1886. They are of three kinds, patents of invention, of importation and of improvement. There is no preliminary examination as to novelty, and the patent expressly mentions that the grant is made without guarantee. The term of a patent of invention is 20 years. A patent of importation or of improvement expires in the former case with the foreign, in the latter with the principal patent. Patents of improvement are not liable to any tax; on other patents a payment of 100 francs is required. There are no provisions as to compulsory working or prohibiting the importation of patented articles.
Costa Rica.—Prior to June 26, 1896, applications for patents had to be made to the Constitutional Congress. The matter is now dealt with by a law of the above-mentioned date. The duration of the term is 20 years. There is apparently no preliminary examination into novelty. The period for compulsory working is 2 years, and a patent which ceases to be worked during any 3 consecutive years becomes public property.
Denmark.—Patents are now granted under a law of March 28, 1894. The duration of the patent is 15 years, and no extension can be granted. There is a preliminary examination into novelty. The patent may, on terms, be appropriated by the state if the public interest demands it. The period for compulsory working is 3 years, and the patent will also lapse if the exercise of the invention is discontinued for more than a year. The patent commission may release the patentee from the obligation of manufacturing the patented article in Denmark, if satisfied that the cost of such manufacture would be unreasonable, on condition that the patented article is always kept on sale in Denmark. The tax is an annual fee of 25 kroner for the first 3 years, 50 kroner for the next 3, 100 for the following 3; then for 3 years 200 kroner yearly, and for the last 3, 300 kroner yearly.
Ecuador.—Patents are granted under a law of October 18, 1880. The provisions are identical with those given for Bolivia.
Finland.—The law is regulated by ordinances of January 21, 1898. The term of the patent is 15 years. There is a preliminary examination into novelty. The period for compulsory working is 3 years, the penalty for non-compliance being an obligation on the part of the patentee to grant compulsory licences. The tax consists of annual fees, commencing with the second year of the patent, and of the following amounts: 20 marks yearly for the 2nd and 3rd years; 40 marks from the 4th to and including the 6th year; 50 marks from the 7th to and including the 9th; 60 marks from the 10th to and including the 12th year; and 70 marks from the 13th to and including the 15th.
France.—The law is still regulated by the law of July 5, 1844. The following additional points should be noted: The term of a patent of invention is 5, or 10, or 15 years, at the option of the patentee. Every such patent is subject to the following taxes, payable by annual instalments of 100 francs: 500 francs for a patent of 5 years, 1000 francs for a patent of 10 years, and 1500 francs for a patent of 15 years. A tax of 20 francs is payable on application for a patent of addition. Patents of addition are not subject to annual taxes. There is no preliminary examination as to novelty. A patentee is not obliged to mark patented articles as such, but, if he does, the words Sans Garantie du Gouvernement, or the initial letters of these words—S. G. D. G.—must be added, under liability to a penalty for omission of from 50 francs to 1000 francs. The provisions as to compulsory working (exploitation) are in the main so interpreted as to strike only at voluntary and calculated inactivity. The law of July 5, 1844 is applied to the French colonies by a decree of October 21, 1848, to Madagascar by decree of 1902, and as to French Indo-China, see decree of June 24, 1893.
Germany.—Patents (the law as to which is not affected by the civil code of 1900) are granted under a law of April 7, 1891. The duration of the patent is 15 years. There is a strict preliminary examination into novelty. The period for compulsory working is 3 years, but it is sufficient if the patentee has done everything that is necessary to ensure the carrying out of the invention. A tax of 30 marks has to be paid before the grant. In addition to this there has to be paid at the commencement of the second and every following year of the term a tax amounting to 50 marks for the first year and increasing by 50 marks every subsequent year. An act of 1900 regulates the profession of patent agents.
Greece.—No special patent law apparently exists. A private act is required, which can be introduced by a deputy and is treated like any other bill.
Guatemala.—Patents are granted under the law of May 21, 1885 and a decree of December 17, 1897. The term of the patent ranges from 5 to 15 years. An annual tax of 30 pesos is payable. The period of compulsory working is 1 year, and abandonment of working for a year forfeits the patent. There is apparently a preliminary examination as to novelty (see Art. 16 of the decree of Dec. 17, 1897), but there is no prohibition of the importation of patented articles.
Hawaiian Islands.—Patents were issued till 1900 under the civil code (§§ 255, 256) and a law of August 29, 1884, which were not at first affected by the annexation of the islands by the United States. There was a preliminary examination as to novelty. ​ The maximum duration of the patent was 10 years. On application a fee of $5 was payable, the commissioner of patents received $20 for his examination, and a fee of $5 was payable when the patent was issued. No further payments. Now the United States law applies.
Honduras.—No. 177 of March 10, 1898. Term not to exceed 20 years. Annual tax 5 to 10 silver pesos; in the case of foreigners 10 to 50 gold pesos.
Hungary.—The law in force is that of July 7, 1895. The duration of the patent is 15 years. The period for compulsory working is ordinarily 3 years. The annual taxes range from 40 kroner for the 1st year to 500 for the 15th.
Italy.—The law is still governed by that of January 31, 1864, extending the Sardinian law of October 30, 1859 to the whole kingdom. There is no preliminary examination into novelty, and there is no provision prohibiting the importation of patented articles. Patents are subject (i.) to a proportional tax of as many times 10 lire as the years for which the patent is applied for, and (ii.) to an annual tax of 40 lire for the first 3 years; 65 lire for the following 3; 90 lire for the 7th, 8th and 9th; 115 lire for the 10th and 11th; and 140 lire for the remaining 3 years.
Japan.—Patents are issued under an act which came into operation on July 16, 1899. The law as to subject matter resembles that of England and the United States. The term of a patent is 15 years from the date of registration. The patent may be annulled if the patentee has not worked his invention within 3 years from the date of the certificate of grant, or if, having discontinued such use for 3 years, he has refused a reasonable request by a third party for an assignment or a licence. An applicant not domiciled in the empire must appoint within 6 months a duly qualified agent by power of attorney. There is apparently a preliminary examination into novelty. The patent owner must affix his mark to the patent. The fees are calculated on a gradually ascending scale.
Liberia.—Patents are issued under a law of December 23, 1864. The maximum term is 20 years. There is a preliminary examination as to novelty. A sum of $25 or $50 is payable on application, according as the applicant is a citizen or an alien. An invention patented by an alien must be put in practical operation within 3 years. There is no prohibition of the importation of patented articles.
Luxemburg (law of June 30, 1880).—The term of the patent is 15 years. There is no preliminary examination as to novelty, and the importation of patented articles is not prohibited. An annual and progressive tax, commencing at 10 francs and increasing by 10 francs annually, is payable in advance. The period for compulsory working is 3 years, and after the expiration of that period compulsory licences may be ordered.
Mexico (law of Oct. 1, 1903).—The duration of a patent is 20 years, with possible extension for another 5 years. The act defines what is patentable and what is not patentable. There is on request of the interested party, an examination without guarantee as to novelty. There are no provisions as to compulsory working (but compulsory licences may be ordered) or prohibiting the importation of patented articles. The ta.x ranges from $50 to $150. The patentee must also at the end of each 5 years of the grant, in order to keep the patent in force for another 5 years, pay 50 pesos at the end of the first 5 years, 75 pesos at the end of 10 years, and at the end of 15 years, 100 pesos. The Patent Office publishes a special gazette—La Gaceta Oficial de Patentes y Marcas.
Nicaragua.—Patents were, as a general rule, until 1899, granted only by special Act of Congress. But see now supplement 720, No. 15, Patent Laws of the World.
Norway (law of June 10, 1885).—The term of the patent is 15 years. There is a preliminary examination into novelty. The invention must be worked within 3 years, and the working must not be discontinued for a year on pain of forfeiture. For each patent an annual tax is payable amounting to 10 crowns for the 2nd year and increasing by 5 crowns each year.
Panama.—Law 88 of 1904 adopts the rules prescribed by the laws of Colombia. The fee is an annual one of $20.
Peru (law of Jan. 28, 1869 and law of Jan. 3, 1896).—The maximum term of the patent is 10 years, and the tax is an annual sum of 100 dollars. There is no preliminary examination into novelty. The period for compulsory working is 2 years, and the importation of patented articles from abroad (except models of machinery whose introduction is authorized by the government) is prohibited.
Portugal (law of Dec. 15, 1894).—The maximum term is 15 years. The patent tax is 3000 reis, payable in advance, for each year of the term for which the privilege is granted or renewed. There is no preliminary examination into novelty. The period for compulsory working is 2 years, and discontinuance of working for any 2 years at a stretch forfeits the patent unless the inaction can be justified. The importation of patented articles from abroad is not prohibited.
Russia (law of May 20, 1896).—The maximum term is 15 years; the tax ranges from 15 roubles for the first year to 400 roubles for the fifteenth. There is apparently (see Arts. 3 and 13) a preliminary examination into novelty, but none into utility. The period for compulsory working is 5 years. There is no prohibition of importation of patented articles.
Spain.—Patents are issued under the law of June 7, 1902. There is no preliminary examination as to novelty, and the importation of patented articles is not prohibited. The duration of a patent is 20 years, and it is subject to an annual and progressive tax, as follows: 10 pesetas for the 1st year, 20 for the 2nd, 30 for the 3rd, and so on successively to the 5th or 20th year, for which the tax is respectively 50 and 200 pesetas.
Sweden (law of May 16, 1884).—The term is 15 years. The annual tax is 25 crowns for the 2nd, 3rd, 4th and 5th years; 50 crowns for each of the following 5 years; and 75 crowns for each of the remaining 5 years. There is a preliminary examination as to novelty, the period for compulsory working is 3 years, and discontinuance during any entire year entails forfeiture. There is no prohibition of the importation of patented articles.
Switzerland.—Federal law of June 21, 1907. The term of the patent is 15 years. There is an annual and progressive tax, rising from 20 francs for the 1st year by an annual increase of 10 francs up to 160 francs for the 15th. There is no preliminary examination as to novelty. The patent is forfeited if the invention has not been carried into practice by the end of the 3rd year, or if patented articles are imported from abroad, while at the same time the proprietor has refused applications on equitable terms for Swiss licences.
Tunis (law of 22nd Rabia-et-Tani, 1306; Dec. 26, 1888).—The term is either 5 years (fee 500 piastres) or 10 years (fee 1000 piastres) or 15 years (fee 1500 piastres). There is no preliminary examination as to novelty. The period for compulsory working is 2 years, and two consecutive years' discontinuance of such working, unless justified, forfeits the patent. So also does the importation of patented articles, but the introduction may be authorized (i.) of models of machines, and (ii.) of articles, made abroad, intended for public exhibitions or for trials.
Turkey.—Patents are still granted under the law of the 2nd of March 1880. There is no preliminary examination as to novelty, and a patentee who mentions his title as such without adding the words “without guarantee of government,” is liable to a maximum penalty of 45 Turkish pounds.
United States.—The American law may be considered at greater length. The Federal Constitution empowered Congress “to promote the progress of science and useful arts by securing for limited times to . . . inventors the exclusive right to their . . . discoveries.” The existing American patent law is based on a series of Acts of Congress passed in virtue of this provision in the constitution, and on the judicial interpretation of these statutes. Between American and English patent law there is, as will appear in the course of this sketch, a considerable degree of similarity. The fact is not surprising when it is remembered that the Statute of Monopolies (21 Jac. I. c. 3) was, except in limiting the maximum duration of letters patent for inventions at fourteen years, only declaratory of the common law, and therefore formed part of the original common law of America. The English and American patent systems further agree in this, that they contain no provision as to compulsory working, and no prohibition of the importation of patented articles. But there are important differences between the two systems, not merely in points of detail, but in matters affecting the theory and practical working of the law. In England the consideration for the grant of a patent has all along been mainly the benefit which the public derives from the introduction of a new manufacture. In America greater emphasis is placed on the right of an inventor to have his merits rewarded. Again, under the Statute of Monopolies an inventor’s exclusive privilege arises only in regard to inventions not known or used at the date of the grant, although it should be observed that under the modern Patents Acts the date of a patent, once granted, relates back to the date of the application. In the United States, on the other hand, the right is conferred on inventors to an exclusive privilege in such inventions as were not known or used before their discovery by the patentees. The practical bearing of this difference is explained in an admirable note on “The Statute of Monopolies” in Ruling Cases, sub tit. “Patent” (xx. 5): “It shifts the point of view in the important question of novelty. Many good American inventions have been given away in England by the premature publication in America of the inventor’s proceedings. He is interviewed, and an article in the New York Sun, or some other paper, in due time finds its way to England. This does no harm in America; on the contrary, it is good evidence of the date of the actual invention. But it is fatal to a subsequent application in England.”
The definition of patentability in American law is contained in sect. 4886 of the Revised Statutes of the United States as amended by an act of the 3rd of March 1897. In the following passage the amendments are indicated by italics:—
“Any person who has invented or discovered any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement thereof, not known or used by others in this country before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country before his invention or discovery thereof or more than two years prior to his application, and not in public use or on ​ sale for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law and other due proceedings had, obtain a patent therefor.”
The effect of the two amendments made by the act of 1897 should first be noted: (i.) The old law failed to state at what time the invention should be known or used by others in America so as to bar a patent; whether before the application or before the invention. This ambiguity is removed by the use of the words “before his invention or discovery thereof.” (ii.) Under the old law a foreign patentee could take out a patent in America for the same invention at any time during the life of the foreign patent, provided it had not been in use in America more than two years prior to his application, unless anticipated by a prior invention or publication. The words “or more than two years prior to his application,” merely give the same force to a foreign patent or publication that had previously been given to prior use. An invention to be patentable must, according to American law, be both novel and useful. Utility may be evidence of novelty and vice versa, and commercial success is relevant evidence of utility. As in England, a bare principle is not patentable. A “process” is included under the words “useful art” in the above definition of patentability, and is good subject matter for a patent when the term is used to represent a practical method of producing a beneficial result or effect. The word “machine” in the definition includes every mechanical device or combination of devices for producing certain results. Such a device or combination is patentable when it possesses utility and novelty, and produces either a new result or an old result in a better form.
Under the law of 1790, which was exclusively American in spirit, the duty of granting letters patent for inventions was discharged by the secretary of state, the secretary of war and the attorney-general, or any two of them. The law from 1793 to 1836 was exclusively English in spirit, and during that period the duty fell to the secretary of state, subject to the attorney-general’s approval. It was in 1837 that the marked divergence between the English and American patent system began. In that year the patent business of the United States had attained to such dimensions that the powers and duties of the secretary of state in regard to patents were transferred to a sub-department of the state department known as the Patent Office. The American Patent Office consists of a commissioner of patents, one assistant commissioner, and three examiners-in-chief, who are appointed by the President of the United States with the advice and consent of the Senate; and also of other examiners, and a staff of officers, clerks and employés, appointed by the secretary of the interior on the nomination of the commissioner of patents. The commissioner of patents, under the direction of the secretary of the interior, is charged with the superintendence or performance of all duties respecting the grant and issue of patents, and has the control and custody of all books, records, papers, &c., belonging to the Patent Office. He is authorized to make, from time to time, regulations not inconsistent with law, for the conduct of proceedings in the Patent Office, and prepares an annual report which is laid before Congress, and which is framed on the same lines as that of the comptroller-general in England. “He is the final judge, so far as the Patent Office is concerned, of all controverted questions arising in the office, and in granting or withholding patents he is not bound by the decisions of his inferiors” (Robinson on Patents, i. 84). The examiners-in-chief are required to be persons of competent legal knowledge and ability. Their duties are: On the written petition of inventors to revise and determine upon the validity of the adverse decisions of subordinate examiners, upon applications for patents, and for reissues of patents, and in interference cases, and when required by the commissioner of patents to hear and report upon claims for extension, and to do such other similar work as he may assign to them. The Patent Office publishes an Official Gazette corresponding to the English Patent Office Illustrated Journal, and discharges similar functions to those of the English Patent Office in regard to the public dissemination of information as to patented inventions. The number of original applications for patents in the period covered by the report of the commissioner of patents for 1906–1907 was 58,762; the number of patents granted was 36,620; the receipts amounted to $1,910,618, the expenditure to $1,631,458, leaving a surplus of $279,160.
The first step in the procedure to obtain a patent is the lodging by the inventor at the Patent Office of a written application, together with a specification of particular written description of his invention, and a claim distinctly pointing out and claiming what he alleges to be his invention or discovery. The specification and claim are signed by the inventor and attested by two witnesses. Drawings, specimens of ingredients, and models may be required to be furnished. On the filing of each original application for a patent, a fee of $15 is payable. The applicant is required to verify his claim to the invention on oath, taken, if he resides within the United States, before any person authorized by American law to administer oaths; if he resides in a foreign country, before any diplomatic or commercial agent of the United States, or any notary public of the foreign country in which the applicant may be. The commissioner of patents then causes an examination to be made into the novelty of the invention, and if the result is satisfactory the patent issues. On the issuing of each original patent, a fee of $20 is payable. A patent is issued in the name of the United States of America and under the seal of the Patent Office. It consists of a short title or description of the invention or discovery, correctly indicating its nature and design, and a grant to the patentee, his heirs and assigns. Patents, it may be observed in passing, may be granted and issued or reissued to the assignee of the inventor or discoverer, and every patent or any interest in it is assignable, the assignment being recorded in the Patent Office, for the term of seventeen years, of the exclusive right to make use of and vend the invention or discovery throughout the United States and the territories thereof. The rights of property in patents granted in Cuba, Porto Rico, the Philippines and other ceded territory under Spanish law are to be respected in those territories as if that law were still in force there. A patent is dated as of a day not later than three months from the time at which it was passed, and if the fee is not paid within six months the patent is withheld. In case, however, the issue of a patent has been prevented by a failure to pay the fee within the prescribed period, the application may be renewed within 2 years after the allowance of the original application. But the applicant has no right to damages for any use of the invention in the interval, and on the hearing of the renewed application abandonment may be considered as a question of fact. So far we have followed the procedure to obtain a patent where its course is uninterrupted. A double form of interruption is, however, possible. A claim for a patent may be rejected on the ground of want of novelty in the alleged invention. In this case, the fact of the rejection, together with the reasons for it, is communicated to the applicant by the commissioner; and if he persists in his claim a re-examination is ordered. Or, again, an application may appear to the commissioner to interfere with a pending application, or with any expired patent. In these circumstances, he gives notice to the applicant, and directs the primary examiner to proceed to determine the question of priority of invention. This interruption of the course of the proceedings to obtain a patent is called an “interference.” In either of the cases above mentioned an appeal lies, on payment of a fee of $10, from the primary examiner to the board of examiners-in-chief, and, on payment of a fee of $20, from the examiners-in-chief to the commissioner in person. An applicant for a patent, but not a party to an interference, may appeal from the decision of the commissioner to the supreme court of the District of Columbia sitting in banc. In interference cases the appeal lies to the District of Columbia court of appeals. There is an ultimate right of appeal, in cases involving the validity of a patent, to the Supreme Court of the United States. Patents are obtainable by bill in equity, although the commissioner of patents (or, on appeal, the supreme court of the District of Columbia) may have refused them. The circuit courts of the United States have original jurisdiction in all patent suits. Appellate jurisdiction is vested in the circuit court of appeals; and on the certificate of that court, or by certiorari, an appeal may be brought to the Supreme Court of the United States.
Section 4887 of the revised statutes provides that:—
“No person otherwise entitled thereto shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid by reason of its having been first patented or caused to be patented by the inventor or his legal representatives or assigns in a foreign country, unless the application for the said foreign patent was filed more than seven months prior to the filing of the application in this country, in which case no patent shall be granted in this country.”
The words italicized in the above section were added by an Amending Act of the 3rd of March 1897. In its original form the section provided that no person should be debarred from receiving a patent because the invention was first patented in a foreign country, whether he was otherwise entitled to the patent or not. The words “otherwise entitled to” merely postulate that no other bar to the issue of the patent shall exist. The words “by the inventor or his legal representatives or assigns” safeguard the inventor to some extent against fraud by third parties; while the provision requiring the application in the United States to be filed within seven months of the filing of the foreign patent is intended to carry out the provisions of the International Convention. It should be noted that the duration of an American patent for an invention already patented abroad is no longer limited by that of the prior foreign patent, but is granted for 17 years from the date of issue.
Patented articles are required to be marked as such, either by the word “patented,” together with the day and the year the patent was granted, being affixed to them, or, when from the character of the article this cannot be done, by fixing to it, on the package containing one or more of such articles, a label containing the like ​notice; and in any suit for infringement by a party failing so to mark, no damages shall be recovered by the plaintiff, except on proof that the defendant was duly notified of the infringement, and continued after such notice to make, use or vend the article so patented. A penalty of not less than 100 dollars is attached to falsely marking or labelling articles as patented.
When through inadvertence, accident or mistake, and without fraudulent or deceptive intention, a patentee has claimed more than he is entitled to, his patent is valid for all that part which is truly and justly his own; provided this is a material or substantial part of the thing patented and the patentee, or his heirs or assigns, on payment of the prescribed fee ($10) disclaim the surplusage. The disclaimer must be in writing, and attested by one or more witnesses; it is recorded in the Patent Office, and is thereafter considered a part of the original specification. But no disclaimer affects any action pending at the time of its being filed, except so far as may relate to the question of unreasonable neglect or delay in filing it.
In the same circumstance, or where a patent is inoperative or invalid by reason of a defective or insufficient specification, the patentee may surrender his patent, and the commissioner of patents may, on the application of the patentee and on payment of a fee of $30, issue a new patent in accordance with the amended specification.
Uruguay (law of 12th November 1885).—The term is 3, 6 or 9 years, at the option of the applicant. There is an annual tax of $25 for every year of the privilege. The invention must be worked within a time fixed by the executive, and the working must not be discontinued for a year, on pain of forfeiture. There is no preliminary examination as to novelty.
Venezuela.—A new law was promulgated by a decree of the 19th of March 1900, but revoked in January 1901 and the old law of 1882 substituted. The term is 5, 10 or 15 years. The tax is 80 francs (bolivars) a year if the patent is for an invention or discovery, and 60 francs (bolivars) a year if it relates to an improved process. There is no preliminary examination as to novelty, nor is there any compulsory working.
International Patents.—The International Convention for the protection of industrial property was signed at Paris on the 20th of March 1883; the necessary ratifications were exchanged on the 6th of June 1884, and the Convention came into force a month later. Provision was made by sections 103 and 104 of the Patents Act 1883 for carrying out the Convention in Great Britain by orders in council, applying it from time to time to (a) British possessions whose legislatures had made satisfactory arrangements for the protection of inventions patented in Great Britain; (b) foreign states with which the sovereign had made arrangements for the mutual protection of inventions. The following governments have signed the international convention: Australia, Austria-Hungary, Belgium, Brazil, Ceylon, Cuba, Denmark, France, Germany, Italy, Japan, Mexico, Netherlands, New Zealand, Norway, Portugal, San Domingo, Servia, Spain, Sweden, Switzerland, Trinidad and Tobago, Tunis and the United States. Under the powers of the Foreign Jurisdiction Act 1890 penalties have been imposed on British subjects committing offences against the Patents, &c., Acts 1883–1888, and the orders in council issued thereunder, in Africa, East Africa, Morocco, Persia, Persian coast and Zanzibar.
An international bureau in connexion with the Convention has been established at Bern, where an official monthly periodical. La Propriété industrielle, is published. Conferences were held under the Convention at Rome in April and May 1886, and at Madrid in April 1890. At the latter conference an important article was adopted, under which it is left to each country to define and apply “compulsory working” (exploitation) for the purposes of the convention in the sense that it chooses.
Authorities.—In addition to the works noted incidentally above, see Edmunds, Patents (London); Wallace and Williamson Patents (London); Frost, Patent Law and Practice (London, 1898) Terrell, Letters Patent (London); Cunynghame, Patents (London) Lawson, The Patents, &c., Acts (London). For the old law, Webster Patent Cases (London, 1844); Hindmarsh, Patents (London, 1846) and the very valuable Parliamentary Reports of 1829, 1851, 1865, 1872. Gordon, Monopolies by Patents (London, 1897); Gould and Tucker, Notes on Rev. Stat. of the U.S., vol. ii. (1887–1897); Robinson, Patents (3 vols., Boston, 1890); Whitman, Patent Laws (Washington, 1871); Law, Copyright and Patent Laws of the United States, 1790–1866 (New York, 1866); Curtis, Law of Patents (4th ed., Boston and London, 1873); Campbell, U. S. Patent System: a History (Washington, 1891). (A. W. R.; T. A. I.)