Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1810-05-01

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dant yet upon further re election, we
are satisfied that we should do vic. 1
lencs to the words, which no rule o.
construction should warrant.
The words of that proviso are "that
no person who shall have used the said
Improvement, or have erected the same
for use, before the issuing of the said
patent, shall be liable to damages
therefor"
That is, shall be liable for having e.
rected, or for having used the improve,
ment, at amy time prior to the patent.
But respect to the esc'ofit, after issu-
ing of the patent, no protection what
ever is afforded against the claim for
damages, under this law.
The next enquiry is--does the gee
neral law give to the plaintiff a right
OF recovery against a person who e.
rected machine prior to the issuing
ct 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 that if any person,
without permission from the inventor,
shall make, devise use or sell the thing
whereof the exclusive right is secured
to the parentee, he shall pay three times
the damage sustained by the patentee,
to be ascertained by ajury. Now
whatever doubts might have existed
as to the meaning of the words 6. de-
wise and use," in the 5th section of the
act of 21st February, 1898, thus con-
Meeting the using with the devising of
| the Improvement, there can be none
| underline Sd section ofthe act'of 1900,
which repeats the whole ofste 5th Sec
ton of the old law.
1t is plain that the using OF an i'm.
provement 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 edevise," which
has been 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, a construction which,
whether it be to make, or to contrive,
to plan, form or design, 1t rs unnecesa
sary in thi, case to decide, because the
charge againat the defendant is the u.
sing Of the plaintiffs improvements,
! unconnected with the making OF de-
vising it.
But it is objected to this construct.
on, that it would render the law ex
post facto in operation, in respect 70
one who has erected his Improvement
prior to the granting Of the patent, to
the plaintiff.
| 1t must be admitted that cases Of
great hardship may occur, if after a
man shall have gone to the expense OF
erecting machine, for which the in-
ventor has not then and never may cb-
tain a patent, he shall be prevented
from using il by the grant of subsc..
quent patent and its relation back to
the patentee's prior inventions. But
the law Ia this case cannot be termed ex
post fasto, or even retrospective in its
operation, because the general law de-
clares 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
inventor, yet doubling whether that o.
ther will ever apply for patent, pro-
ceeds, to construct a machine, of hich
it my afterwards appear he is not the
first 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 ofihe machine thus erected.
Not only may individuals be injured
by Liberal 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
1 time keep others at arms length, so as
to prevent them from pro6ting by the
invention for alength of time, during
which the IA years arenot running on.
But all these hardships must rest with
Congress to correct. 1t is beyond
our power to apply remedy. No
such hardships exist in this case, where
the defendant erected the improve
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