Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1810-04-24

of recovery against person who e.
rected machine prior to the issuiag
Of a patent to the first inventor of it,
and who afterwards made use of the
same.
The act of the 18th April, 1900,
which as TO this point is the only law
in force, declares rhat if any person,
permission from the inventor,
shall mako, devise use or sell the thing
the exclusive right is secured
to the paten,ee, he shall pay three times
the damage sustained by the patentee,
to be ascertained by jury. Now
whatever doubts might have existed
as to the meaning of the words ssde-
wise and use," in the Sth section of the
act OF 21st February, 1898, thus con-
Meeting theusing with the devising of
the improvement, there can be none
under the sd section of the act of 1900,
which repeats the whole of the 5th sec
ton of the old laws
1t is plain that the using of an i'm.
Prcvemsnt invented by another, and
secured by patent, is of itself an of
fence, no matter at what time such
Improvement was devised or made.
Whether the word @devise," which
has been a good deal criticised, is sy-
nonymous with make, as one of
the plaintiffs counsel seemed to think,
or means to invent, a mere act
of the mind, construction which,
whether it be to make, or to contrive.
to plan, form or design, it is unneces.
sary in this case to decide, because the
charge against the defendant is the u.
sing of the plaintiffs improvements,
with the making or de-
vising it.
But it is objected to this CONSTRUCT
on, that it would render the law ex
post facto in operation, in respect to
one who has erected his Improvements
prior to the granting of thepatent, to
the plaintiff.
1t must be admitted that eases of
great hardship may occur, if after a
man shall have gone to the expense of
erecting machine, for which the in
ventor has net then and never may OBJ
tain patent, he shall be prevented
from using it by the grant of subse..
quent patent and its relation back to
the Patentee's prior invention. But
the law Ia this case cannot be termed ex
post faeto, or even retrospective in it's
operation, because the general law de-
clsres beforehand, that the right to the
patent belongs to him who is the first
inventor, even before the patent is
granted; and therefore any person
who, knowing that another, is the first
inveHtor, yet doubling whether that O.
Their will ever apply for patent, pro-
ceeds, to construct a machine, of which
i may afterwards appear he is not the
hrst inventor, acts at his peril, and
with full knowledge of the law, that
by relation back to the first invention
as ubsequent patent may cut him out
of the use ofthe machine thus erected.
Not only may individuals be injured
by aliberal construction OF the words in
the law, but the public may suffer if an
obstinate or negligent inventor should
decline obtaining patent, at the same
time keep Others at arms length, SO a.
to prevent them from pro6ting by the
invention for alength of time, during
which the IA years afenot running on.
But all these hsrdships must rest with
Congress to correct. 1t is beyond
eur power to apply a remedy. No
such hardships exist in this case, where
the defendant erected the improve
ment, with knowledge not only that
the plaintiff was the FIRST inventor,
but had absolutely obtained a patent
twas afterwards declared In
valid.
The circumstances of this case rem
der it unnecessary to give an opinion
rs to the right of first inventor after
patent obtained, to recover against one,
who believing himself to be the first
inventor, constructs machine or i'm
upon the principles of his
new invention, or uses the same after
such patent issued.
Upon the point Of notice, we think
that the act of 1903 being private
act, the defendant is liable, only from
the time he received notice Of the law.
Judgment Tor the p1aissif.