The New York herald., 1851-12-04

ofoperaton, and which, Of course, for the reasons
already lsid down, can be protected only IN tho
R: 27s, 2s5 4 Wash. G: c. 5, II; j Howard, SO4;
Web on p, 8, 9; Phil. Pat, 74-76; Hindmarsh,
40; Curtis, 80, 9th section
No lawyer oonversant with II. patent system
could for Q moment suppose that, because Ark
wright hrst invented and perfected the art Of
spinning by machinery, he could have taken out
patent for this art generally, and covered and
prevements in that art. On the contrary, he could
shield no mode of the art but that which he had
devised, used, and described. So it has been held
that patent for cutting ice by human power does
not D cover any mode but that described q Story,
So, though Woodwork first invented planning
boards by machinery, he could not take out
land thus either monopolize or prevent future
improvements, when differing substantially from
his machine. But the whole effort OF Weodworths
assignees has been to describe his particular mode
of planning 80 as not to omit nything material, or
to cover too much and no attempt is made to pro
tect anything connected with planning by mschi-
merry, except the mode thus described, or what Is
The misohievous consciousness that would result
from the grant of patents for arts generally without
reference to the method invented by the patentee,
are eloquently portrayed by that learned Judge.
working of such syste u, that if any one man had
been the invencor Of the art of transmitting inte
gence by electricity, by any means Whatever, he
might have taken out patent, not merely tor his
mode of exercising that art, but for the art gener
ally. AID then, If his method had required the
lapse of half minute between each letter or word,
no other aud better system could have been intro
duced without his permission, which might have
been withheld at pleasure.
Not only does Judge ans expand the patent law,
so as to hold that 1t authorizes the grant OF patent
for an art in the abstract, but he holds also that
patent may be for longer period than fourteen
years beyond the date of foreign patent obtained
by the same party that the entee may surrender
his patent as often as he peases and obtain reissues
eplargirg his claim from time to time, and even
that patent for an improvement on an old art may
be surrendered, and another one be issued In its
place, for the invention Of art itself in the alb
stract. In the opinion we are favored with very
little beyond the judges conclusions, and We find
that these differ in the most essentia Al particulars
from those of other Judges before whom the same
questions have been htigated.
able features Of this controversy is, that without
trial by jury, and in case where other judges bad
arrived at conclusions opposed to those OF Judge
Kane, he should take upon himself to Issue an in
the United States, and that after the privilege
granted by the patent had been exercised for some
time, without molestation, over Thousands Of miles
of territory in the various States. The judge de-
stopped Immediately, whereby large and ,aluable
property is rendered worthless and the reversal Of
the judges decision will not restore this loss The
Injunction is insisted upon and enforced, although
there is bona tide question of title which must be
finally disposed of by the Supreme Court, and more
than one judge Of that court has intimated an
opinion against the plaintiff. Contrast this with
the practice in the English courts Of chancsry in
similar cases. By the settled practice Of those
courts where the right of the patentee and the ques
ton of Infringement are not entirely free from doubt,
the Injunction is suspended until the right has
been determined by a jury. This is reasonable
rule, preserving the common law right of trial by
jury, where the witnesses are brought face to face
and examined in open court, and II prevents hasty,
crude and nl-considered adjudications, whereby ir
remediable mischief may be wrought By the writ Of
Injunction In all doubtful cases there should be q
trial at law, ard final determination Of al legal
points before the writ Of injunction issues. But,
according to the practice in Judge kane's court,
whatever may be the doubts on the facts, what
ever may be the opinions Of other judges, and even
if the acts complained Of are done under patent
granted by the government, and hundreds OF thtu-
sands OF dollars have been invested on the faith OF
it, and the privilege has been In the most public
manner exercised, for period without molestaton,
all over the country, yet the ipjunction Is to be
issued at once-the right Of trial by jury Is to be
on mere depostions taken out Of court, however de-
sirable it may be to have public examination OF
some Of the witnesses.
II will be manifest to every rejecting mind, that
such practice must be elton calculated 10 rTsSduce
grieyous and IRE ediabe IL jury to persons acting
in the utmost good faith, in the exercise ofprveges
which the government has assumed &c confer upon
them.
According to this practice ifa telegra ph patentss
can find In any one ofthe numerous districts through
which his telegraph lines may run, single Judge
who is known to have formed 40 of hand opinion - =
his favor, having expressed such opinion In public
lecture, or in private Conversation, that judge may
be selected by the patentee, and an Injunction may
be issued, restraining the use Of rival invention
without the slightest regard being paid 10 the OPT
Mons Of other judges.
a summary Of the merits Of this controversy lies
In small compass. Morse claimed TO be the first
hv narka for ~ flatta
or words To this it was answered that others had
preceded him, especially Steinheu. How does
Judge Kane disio,c Of this 7 Simply by saying
that Steinhcis. devise was merely a semsphOro
"that spoke to the eye for ;noment.
This Is plain mistake OF the leading question Of
fact. it not being pretended by any body that
such was tho nature OF Steinheil's IL vention And
it will observed that Judge Kane ignores the noto-
rious facts known all the world, usntioned in
the opinion Of the commissioner Of patents above
quoted.
In the next place, the defendant counsel CON
tended that II Morse had been the arst TO make
marks by electricity as signs for letters words, he
could only have patent Tor the means used by him
to produce that result. and other means EQUIV slent
thereto In legal contemplation, and could net have
marks and moreover did not obtain such patent
How does Judge Kane deal with this he does not
notice either branch OF the proposition. IL he hal
attempted to refute the argument, bis decision
would not have read 30 smoothly in the nevspa-
pers for il would have appeared on the face Of tie
opinion itself that IL was in opposition to that Of the
great patent lawyer, Judge Woodbury., and in di-
rect conflict with the hitherto established Law Of
patents; ard Il would have appeared also that the
decision went beyond the true meaning OF the patent
granted 10 Morse, aud supported pretensions that
were formerly .negssved BY Mcrse'S own counsel
and BY Morse himself
The question whether Morse's principal patent is
valid has been examined BY Judge MLean, In a
case In Ohio, andi is understood tha. al opinion
vas prepared by him 20 the effect that the patent
void, account Of its being for longer peri
cd than fourteen years beyond the date Of patent
taken cut previously by Morse In France But the
Judge very properly reserved the question tor the
opinion Of tho Supreme Court This objection was
raised in Houses case. Judge Woodbury. inti-
mated that he would not decide the point, ~ he
Of opinion that, even II the patent was v-it, there
was n infringement by HOUSES system. For this
rvsscp, the Judge held that IL unnecessary for
him to decide upon certain objections raised TO
Morsss ti,le, "and more especially whether his
chief IateDt Is not invalid, because covering too
long a period-the time included by q previous
L. L.. LII