New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1845-11-20
INVENTORS. PATENT RIGHTS.
rRor. KENwiCK's ADDRESS
To the Inhabitants of the United States

,,5 :, The civ OF New y DIRK on the 2ad day OF DC
,,hcr the duty of preparing Address setting
c,,,b the views OF the Convention in relation TO the
cxiS,inr Pa,cn, Laws and suggestions tor improve
mcnts (which they appeared to be susceptible, was
assisncI 10 the President OF the Convention. In
n,r},rmancc of the task ihus committed 10 him. the
undersigned respectfully presents TO his countrymen
= brief exposition oi,hc subjects which attracted the
attention andrcccycd the approval Of the meeting.
! / Il was found, ON examination OF the manner in
which by the rules Of the common dcfences for in
! frinscmcnt of Patent Rights nov conducted
that SO far from The letters patent being received as
evidence OF vested rights in the paenice, the bur
then of proof of the originality of his invention was
in fac, thrown upon him. The plea. too. that the
matter in dispute was not original, might be set up
on every suit and in the difficulty Of adtocinS on
every occasion the same testimony and the varying
orinions Of different, iuries and different Judges it
nigh, 50 happen iha; while one defendant was
nlulc,cd in damages. another might be declared to
have committed no infringement. Two inconvcnien.
ces thus arisc-frs,, thai verdict in favor OF pat
cn;ce is no security against future iniringements
aud ncxttha. the holder Of patent in reality worth
less, nigh; harass, BY vexatious suits those using
machines or processes in reality The property OF the
public.
Under the old law no more was necessary 10 con-
s,itu,e RICH, to receive a.paeni than the bare oath
Of the party claiming 10 be the inventor Such a
/ provision unqucstionably left room for fraud, but
there is little reason 10 believe that premedilatcd de-
ception was practiced to any extent under it. be-
cause the very source whence the pretended ayon.
ron was drawn could no, vel be Inaccessible the
nubIc There were however, innulnerablc instances
where persons good faith and after the painful studies
OF years filed specifications OF machinery and processes
either long abandoned ta!arly known il, other parts
OF the world When patents rested ON such tounda-
tion couidnot be matter OF compaintth upon prose
ctjous for their infringement should De permitted the
defendant 10 prove that the subject OF the patent was not
uew Injustice was no doubt sometimes committed IRON
the difficulty Of dngu hing an Iinpo!la! new improve
ueut from ancient process 10: the sae purpose
but greater injustice would have been committed on tEe
other hand ;hc OATH OF parry stoud COME: on
hin, exclusive pryi ges for the use OF something he was
not invent and bring into use AZ present the
conditions obtaining patent are completely changed
None can be Issued without patient investigation by
examiners, who far the community is concerned
must be admitted ~ be qualified 10 INQUIRE whether spt
c!icgt1n be original. and VINO are well iurnlshed win
he works of reference which decision that effect
may founded. lssuea under such circumstances II Is
no unreasonable demand that the patent Ese shall oe
proof tnat mater
is original and that the question before the cour shall be
narrowed down that Of the fact OF lis being used by
the defendant not.
None can have attended the trial of patent
without having Observed with what difficulty judges
however learned In the law reach the points which form
the true issue between the plaintiff and defendant; ne
Their any intelligent mechanic have listened to their
charges without detecting errors IA matters WITHIN hls
province that have led 10 yerclci5 winch
have asogished him Nor these learned and coneci
cnous men 10 be blamed for knowledge
L, h- eDfl in a
elementary ~eatises on science me iau!t lies
in the system which causes them To preside unalded
in which the rule of law forms but small
however important part u the pleadhgs IL Is su5
cescd that this feature, which IS not only injurious 10
the gans but cannot fail TO lessen the respect OF the
community for the tribunals, be amended by appoint
eEt u Special Justices 10 Hct as assessors TO the Law
Judges of Circuit ard District in the trial of patent
cases This il is alleged is feature in Judicial pro-
ceedings for the policy OF the common law mas prord-
ed in numerous that judges VINO a.c not lawyers
shall sit upon the bench in where the truth OF acs
be investigated Thus, to 60 back to the origin OF
of our Institutions TIE unpaid maestracy OF England,
made up country squres and cereymen sit with the
judges at the Quarter Sessions; anu not To accu
ulate instances anon. ourselves The Aldermen OF tie
cities and the County Judges in the State OF New ork
form an essential part Of the bench OF many OF the courts
of first instance 1t is urged hatbv ENGRAVING such fea
ure on our existing tribunals the ends OF justice would
be promoted BY closer sitting OF matters OF FACT arising
from the united efforts Of legal acuinen with practca!
skill il How such Judges shal. be appointed, r.
what rate compensated and by what tenure OF Office, the
Convention body did not :cnture 10 inquire, and
whatever vague expressions were dropped in adesuory
debate az body satisfied that such points should
he left to the wisdom Of the Legislature. Nor was
thought that any good effects could arise from lesiSia
tive cnactcns in regard 10 the qualifications othe Hpc
ciu Justices inasmuch experience he'd shown that IN
the nomination judicial Offices al least, the acts o! the
Executive in every varying change of party, had III no
failed Of being justified By the talent and virtue OF
the nominee. SO much. however clear III the opn-
ION OF all, namely, that Tie compensation should be SUIT
Recent enable them TO devote their whole time TO the
duties ofthcir Office.
g. 1t is a well known fact that high legal ac.ho.tcs
have given conflicting opinions in relation to the acts by
which paenee may vta,e his claims 70 redress at law
and be considered as having abandoned his Invention
to the public. twas also in evidence before the Con
"cnton that urist not agreed as 20 what constitutes
such prior OF an invention as Will vlilaic patent
In such of uncertainty. it IS not asking too much
the legislative branch OF the Government to pray for
enactments defining and rendering certain the law
these points and IN praying for such legislative pr0vs
ions, il done III the hope that the new tnac;ments shall
he benign in their action the interests OF inventors. Il
IS trusted that the use OF an invention by its author while
engaged bringing il 20 perfection will longer be
considered bar his enjoyment of its benefits and
that he shall be considered having abandoned his
rights however well known his preliminary experiments
may have become.
L. So also doubt exists whether on the reissue
of patents the holder shall be confined 70 his original
claim forth IN his specification whether he may
claim all which contained within the limits of his first
description and drawings. Now ii cannot be question:.
ed that while the description in order 10 render the
or old necessary lis being pat successful practice
BY others than the inventor, i; is possible that the
formal claim may have omitted tor ;ear OF its including
too much points in themselves and worthy OF The
protection OF the Government. |, appears TO be
rary all principles OF equity that errors arising from
iuadvercncy Of caution may not be corrected
when they discovered or that bona ude inventor
should be deprived Of the enjoyment OF discovery
made and described by himself because he shall have
fed to point cut in express words to especial notice
5 In the opinion of The Convention, the tribunal now
established Tor deciding upon the p-opriey OF extending
the duration Q; patents is not wei! adapted TO the pur
pose in consequence OF It's calling for the action OF some
OF the highest officers of the Gcvernmentwhose time and
thoughts fully occupied subjects Of such high Ma
ronal Importance as 20 have little leisure for the con.
sderaon of questions intricate IN themselves and
bearing only upon the interests OF obscure individuals
1t was therefore suggested that IN addition TO the Com
missioner OF Patents at present member OF the thu
nal, the chief examiners Of patents should coust!.
,Gtc the Commission II believed that these tune
i;onaries whose whole attention IS necessarily devoted
10 topics OF The description those arising upon
applications for the extension OF patents could perform
tie task with less labor themselves and salts
aco 10 the public than the Commission asl at present