inventions.

All which parliamentary protections appear to have been suggested by the exception in the Statute of Monopolies, 21 Jac. I., Patents for c. 3, which allows a royal patent of privilege to be granted for fourteen years to any inventor of a new manufacture, for the sole working or making of the same; by virtue whereof it is held that a temporary property therein becomes vested in the king's patentee.k1

* 1 Vern., 62.

(13) Long before the statute of James cense, under his hand and seal. The the illegality of monopolies had been in- instrument contains a proviso that the sisted on, both in statutes and charters, patent shall be void if it shall appear but it was not until the reign of Eliza- that the grant is contrary to law, or prejbeth that the judges began in earnest to udicial or inconvenient to the subjects, set themselves against royal grants of or that the invention is not new as to the exclusive trading privileges. In the public use thereof in England (or other celebrated Case of Monopolies (11 Rep., limits within which the privilege is 84, b, 44 Eliz.), they had the boldness granted), or not invented or found out to decide against a grant by the crown by the patentee (unless the patentee of the sole privilege of making cards rests his title on a communication from within the realm. On this occasion it abroad). A condition against assigning was said that all monopoly patents were the patent to more than twelve persons void, both at common law and by statute, unless they were granted to the introducer of a new trade or engine, and then for a reasonable time only, until the subjects might learn the invention.

follows, and then the important proviso that the patent shall be void if the patentee do not particularly describe and ascertain the nature of his invention, and in what manner it is to be performThe statute of James I. prohibited all ed, by an instrument in writing under monopolies, with some trifling exceptions his hand and seal, and cause the same in addition to the one important excep- to be enrolled in Chancery within a certion of "any letters patent and grants of tain time after the date of the letters privileges for the term of fourteen years patent. or under, hereafter to be made, of the The instrument referred to by this last sole working or vending of any manner proviso is called the specification, and it of new manufactures within this realm, is required to be thus enrolled for pubto the true and first inventor and invent- lic inspection, in order that any person ors of such manufactures, which others, may learn the mode of practicing the inat the time of making such letters pat- vention, and may be enabled to practice ents and grants, shall not use; so as also it as soon as the term of monopoly exthey be not contrary to the law, nor mis- pires. The inventor is required, as the chievous to the state, by raising prices price he pays for his monopoly, to enroll, of commodities at home, or hurting of to the best of his knowledge at the time, trade, or generally inconvenient." the fullest and most sufficient description of all the particulars on which the effect depends, so as to enable others to practice it as perfectly and with as little labor and expense as he himself can do. The specification must be sufficient to enable an ordinary workman, conversant with the manufacture, to perform it without making experiments, or exercising his invention. (Bull., N. P., 76; 2 Hen. Bl., 463.) As any experiments made before the obtaining of the letters patent, with a view to perfecting the invention, might lead to its disclosure, and by that means to the loss of the protection of the letters patent, a period of four or six months, from the time of sealing the letters patent, is given, within which to enroll the specification, in order that the inventor may by trials mature his inven

Letters patent for an invention are obtained upon petition to the queen, which is referred to the attorney or solicitor-general, who, after hearing the applicant and any person who may present himself to oppose the grant, determines on the propriety of granting the patent, and reports accordingly. Separate letters patent are taken out for England, Scotland, and Ireland, but the colonies and channel islands may be included in an English patent.

By the letters patent the crown grants to the petitioner, his executors, administrators, and assigns, exclusive license to make, use, exercise, and vend his invention for the term of fourteen years, and prohibits other persons from using the invention without the patentee's li

tion, and enable himself to describe the manner of new manufactures, which othbest mode of carrying it into effect. Al- ers, at the time of making such letters though the specification contain a full patent and grant, shall not use ;" and the disclosure of the invention, it will be bad grant must be to the "true and first inif it claim (that is, state as part of the ventor thereof," which words have been invention) any thing which is not with- construed to mean either the discoverer in the protection of the patent, that is to of the thing by his own wit and experisay, if it claim any thing which is not ments, or the first introducer of the thing new, or which is otherwise not a subject from abroad, his finding it there being for a monopoly. "Unlearned men," in some sense an invention. The patent, said Lord Kenyon, in deciding against a then, is bad if, either by its title or by specification of this kind, "look at the the specification, it applies to any thing specification, and suppose every thing which is not a manufacture, that is, some new that is there; if the whole be not machine, method, or process applied to new, it is hanging terrors over them." practice, and producing some tangible If, therefore, in describing the mode of result. As, for instance, if it claim the exercising the invention, it be necessary use of a principle or general law, withto describe any machine or process al- out showing how such principle is to be ready known, the inventor must take applied to practice so as to produce a care to state, or to show clearly, that he useful result, or if it claim merely a new does not claim the use of such machine mode of using (i. e., in private life, and or process. Or, if the subject of the in- not as part of a process of manufacture vention be an improvement on a princi- or trade) a thing already known. (See ple already known, the specification will 2 H. Bl., 463; 8 T. R., 104; 8 Mee. & be bad, if it claim the application of the Welsb., 806.) In a recent case (Webst., principle generally, instead of the par- Pat. Cas., 144), Mr. Baron Alderson said, ticular variation in the mode of carrying "You can not take out a patent for a it out, which is new. (2 Marsh., 211.) principle; you may take out a patent The hardships resulting from the for a principle coupled with the mode strictness of the rules to which the title of carrying the principle into effect, proand specification of a patented invention vided you have not only discovered the are required to conform, have been al- principle, but invented some mode of leviated by Lord Brougham's act of the carrying it into effect. But then you 5 & 6 Will. IV., c. 83, which allows a must start with having invented some patentee, with the permission of the at- mode of carrying the principle into eftorney or solicitor-general, to enter for fect; if you have done that, you are enenrollment a disclaimer of any part either titled to protect yourself from all other of the title or specification of his inven- modes of carrying the same principle tion, or a memorandum of any alteration into effect, that being treated by the in such title or specification, not being such a disclaimer or alteration as would extend the privilege granted by the letters patent: such disclaimer or alteration to be advertised as the attorney or solicitor-general shall require. (See 2 Gale & D., 17; 2 Mee. & W., 471.) The same statute authorizes the crown, on the report of the Judicial Committee of the Privy Council, to confirm a patent, when it shall appear that there was a prior invention or user of the subject, unknown to the patentee, but no public or general user; and upon a like report the crown is authorized to extend the term of any patent to a further period of not more than seven years. See, also, 2 & 3 Vict., c. 67; 7 Jur., 451, 459.

It has been said that the specification is bad if by it the patentee claim the exclusive use of any thing which is not a fit subject-matter for a patent. The fitness of the subject is to be ascertained by reference to the exception in the statute against monopolies; from which we learn that the patent, to be valid, must be for "the working or making of any

jury as piracy of your original invention." (See I Car. & M., 471.)

The invention must be new or sub stantially different from any known machine or process; but it is not easy to state any criteria by which to determine whether a particular invention is sufficiently novel to sustain a patent. The shearing of cloth from list to list by rotatory cutters; the use of shears from list to list, and of rotatory cutters from end to end, being previously known (3 Car. & P., 502); the use of anthracite coal, in combination with a hot blast in smelting iron ore; the hot blast with other coal, and anthracite coal with the cold blast, being previously known (5 Scott, N. R., 338); the making of iron tubes, by drawing a heated plate of iron, rolled up, through steel dies, with out a mandril; the drawing of a heated plate of iron, rolled up, through grooved rollers, with a mandril, being previously known; so that the improvement (which was of great practical importance) consisted in a mere omission of part of a known process (1 Cr. M. & R., 864; 1

* See the Commentaries of Chancellor Kent on the law of patent-rights.-(2 Kent's Comm., 366–373.)

CHAPTER XXVII.

OF TITLE BY PREROGATIVE AND FORFEITURE.

rogative in

A SECOND method of acquiring property in personal chattels Title by pre is by the king's prerogative; whereby a right may accrue either thing or to the crown itself, or to such as claim under the title of the his grantee. crown; as by the king's grant, or by prescription, which supposes an ancient grant.

customs.

Such, in the first place, are all tributes, taxes, and customs, Taxes and whether constitutionally inherent in the crown, as flowers of the prerogative and branches of the census regalis, or ancient royal revenue, or whether they be occasionally created by authority of Parliament; of both which species of revenue we treated largely in the former volume. În these the king acquires, and the subject loses, a property the instant they become due; if paid, they are a chose in possession; if unpaid, a chose in action. Hither, also, may be referred all forfeitures, fines, and amercements due to the king, which accrue by virtue of his ancient prerogative, or by particular modern statutes; which revenues created by statute do always assimilate, or take the same nature with the ancient revenues, and may, therefore, be looked upon as arising from a kind of artificial or secondary prerogative. And, in either case, the owner of the thing forfeited, and the person fined or amerced, lose and part with the property of the forfeiture, fine, or amercement the instant the king or his grantee acquires it.

be joint owner in a

chattel.

In these several methods of acquiring property by preroga. [409] tive, there is also this peculiar quality, that the king can not King can not have a joint property with any person in one entire chattel, or such a one as is not capable of division or separation; but where the titles of the king and a subject concur, the king shall have the whole; in like manner as the king can not, either by grant or contract, become a joint-tenant of a chattel real with another person,a but by such grant or contract shall become entitled to the whole in severalty. Thus, if a horse be given to the king and a private person, the king shall have the sole property; if a bond be made to the king and a subject, the king shall have the whole penalty, the debt or duty being one single chattel; and so, if two persons have the property of a horse between them, or have a joint debt owing them on bond, and one of them assigns his part to the king, or is attainted, Fitzh. Abr., tit. Dette, 38. Plowd., 243.

a See page 184.

King's property in treasure-trove, wrecks, waifs, royal fish, &c.

whereby his moiety is forfeited to the crown, the king shall have the entire horse and entire debt.c For, as it is not consistent with the dignity of the crown to be partner with a subject, so neither does the king ever lose his right in any instance; but where they interfere, his is always preferred to that of another person;d from which two principles it is a necessary consequence that the innocent, though unfortunate partner, must lose his share in both the debt and the horse, or in any other chattel in the same circumstances.'

This doctrine has no opportunity to take place in certain other instances of title by prerogative, that remain to be mentioned; as the chattels thereby vested are originally and solely vested in the crown, without any transfer or derivative assignment, either by deed or law, from any former proprietor. Such is the acquisition of property in wreck,* in treasure-trove, in waifs, in estrays,* in royal fish, in swans, and the like, which [410] are not transferred to the sovereign from any former owner, but are originally inherent in him by the rules of law, and are derived to particular subjects, as royal franchises, by his bounty. These are ascribed to him, partly upon the particular reasons mentioned in the eighth chapter of the former book, and

Cro. Eliz., 263. Plowd., 323. Finch,
Law, 178. 10 Mod., 245.

(1) But, in favor of commercial interests, it has been holden, that, on an extent, or extent in aid, against one of several partners, only the beneficial interest of that one can be taken. (1 Wightw., 50; Chitty, Prerog. Cr., 287.)-[CHITTY.]

If a joint-tenant of any chattel interest commits suicide, the right to the whole chattel becomes vested in the king. This was decided, after much solemn and subtle argument, in 3 Eliz. The case is reported by Plowd. (262, Engl. ed.). Sir James Hales, a judge of the Common Pleas, and his wife, were joint-tenants of a term for years; Sir James drowned himself, and was found felo de se; and it was held that the term did not survive to the wife, but that Sir James's interest was forfeited to the king by the felony, and that it consequently drew the wife's interest along with it. The argument of Lord Chief-justice Dyer is remarkably curious: "The felony (says he) is attributed to the act; which act is always done by a living man, and in his lifetime, as my brother Brown said; for

#

d Co. Litt., 30.

he said Sir James Hales was dead; and how came he to his death? It may be answered, by drowning; and who drowned him? Sir James Hales; and when did he drown him? in his lifetime. So that Sir James Hales, being alive, caused Sir James Hales to die; and the act of the living man was the death of the dead man. And then for this offense it is reasonable to punish the living man who committed the offense, and not the dead man. But how can he be said to be punished alive, when the punishment comes after his death? Sir, this can be done no other way but by divesting out of him, from the time of the act done in his lifetime, which was the cause of his death, the title and property of those things which he had in his lifetime."

This must have been a case of notoriety in the time of Shakspeare; and it is not improbable that he intended to ridicule this legal logic by the reasoning of the grave-digger in Hamlet upon the drowning of Ophelia. (See Sir J. Haw. kins's note in Stephens's edition.)— [CHRISTIAN.]

Estrays, in New York, are sold, and the proceeds paid over to the owner, if he appears to claim the same, within a year after the sale; otherwise, they are applied to the use of the town.-(1 R. S.. 351, 2.) As to wrecks, the state disclaims all right of prerogative, and provision is made by law to give to owners the benefit of the property.-(1 R. S., 690, et seq.)