The republic., 1851-01-25
The Patent Laws.

We have had occasion to notice very briefly
the bill now before the Senate, proposing some
material alterations in the Patent Laws. The
whole tendency oflegslative and judicial ac-
tion for the lastvten years has been in deroga
ton of popular and public rights, under the er-
roneous impression that the cause of improve
ment is to be advanced by what is called a
liberal construction of the rights Of patentees.
The principles of Interpretation now applied to
patents are entirely different from those. ap-
piled to all other instruments; and patent at
the present day is any thing that well-trained
experts and unscrupulous counsel can prevail
upon twelve gentlemen in a jury box to believe
it. A fugitive claim may be hunted from the
letters patent to the preamble of the spe-
cifcation; from the preamble to the description;
from the description to the formal caim
from the claim to the drawing; and
from each of these sources to all of them to-
| gether The result of this is that, instead of
being something distinct and definite, as every
public grant ought to be, patent is the most
vague, uncertain, and indefinite of all the doc
uments that come before our courts. In con
sequence Of this state OF things, the most griev-
! Gus and abominable expressions have been
practised which render the Patent Office any
thing but what it was a. d-'onea !" pe'
The bill now before the Senate proposes ~o
| alterations in the laws, which may tend to nit
igate the evils under which the public now suf
fer These are--l. A provision for the repeal
by scire tacias of patent improperly or lille
gally granted; and, 2. A provision requiring
notice to the public prior to the reissue, addi
tion to, or extension of, patent, and protection
to the honest tradesman or manufacturer, SO
far as the manufacture of articles and inventions
is concerned, prior to the reissue of patent
with ertended claims.
There are two parties interested in every
patent--the inventor and The public. For
some centuries in England, the courts very
wisely and humanely looked out for the in
| terests of the public, and made strict inter
pretation of these grants, issued in derogation
of public and individual rights. We are well
persuaded that this was the proper system. In
stances of individual hardship no doubt oc-
Cured, but in the main honest inventors were
Pioscc'cu- PuDiiC was ssiIc aptlHSI I'M
position and extortion. The moment we po
beyond the rule of strict construction, every
thing rests upon the caprice or fancy of the
courts; and nobody can tell what is in
cluded in patent, or excluded from it, un-
| til he hears it announced from the bench
Nor then can he tell, except for the purposes
| OF the then pending trial; for on another trial
the court may give an entirely different con-
struction of the same patent and the supposed
lnfringer, who has made up his case to meet the
first judicial Interpretation, is surprised with a
new case. third trial may lead even to
third Interpretation, for a nisi prius construc
ton is not binding even upon the Judge who
makes it, and he is at liberty wary his view Of
the instrument, until there is a judgment in the
premises Of the Supreme Court. This not only
may be, bit has been; and therefore it is that
we say that the loose and inconcusive rules
that have of late years been laid down for the
Interpretation Of patents work infinite mischief
TO the public, and are of infinite injury to the
cause Of progress and improvement in the arts
II is not too much to say that any attempt of
layman, or even Of a well-educated lawyer, to
interpret patent from the terms Of the grant, is
altogether impossible under the prevailing de-
cisions Of the courts
For these reasons we are in favor Of all le-