Gambar halaman
PDF
ePub

with such other matters as the practice of the place requires.1 2. A document granted in time of war to protect persons or property from the general operation of hostilities.2

3. In most countries of Continental Europe passports are given to travelers. These are intended to protect them on their journey from all molestation while they are obedient to the laws. The Secretary of State may issue, or cause to be issued in foreign countries by such diplomatic or consular officers of the United States, and under such rules as the President may prescribe, passports, but only to citizens of the United States.3

PATENT AMBIGUITY.-See AMBIGUITY, vol. 1, p. 527.
PATENT FOR LAND.-See PUBLIC LANDS.

1. Bouvier's L. Dict.

Passport and Sea-letter (Distinguished).—The former is a permission from a neutral state, to a master of a ship, to proceed on the voyage proposed, and usually contains his name and residence, the name, description and destination of the ship, with such other matters as the practice of the place requires. The sea-letter specifies the nature and quantity of the cargo, the place from whence it comes, and its destination. Sleght v. Hartshorne, 2 Johns. (N. Y.) 543. See also SEA-LETTER.

2. Bouv. L. D.; Wheat. Int. Law 475; 1 Kent 161.

3. Bouvier's L. Dict. See 1 Kent 162, 182; Urtetiqui v. D'Arbel, 9 Pet. (U. S.) 692.

"A passport, or sea-letter, is a wellknown document in the usage of maritime commerce, and is defined to be a permission from a neutral state to the master of a ship to proceed on his proposed voyage, usually containing his name and residence, and the name, property, tonnage and destination of the ship. Although it evidences the permission of the State to navigate the seas, yet it does not, therefore, follow, that it must issue directly from the supreme power of the State; and some authority ought to be shown to support such a position. This erroneous notion, probably, arises from the practice of our own country, which is different from all other nations. Previous to the year 1793, no other documents were furnished to the merchant vessels of the United States but the certificate of registry and clearance; but the depredations upon our commerce having commenced with the

European war which broke out in that year, a form of sea-letter was devised, and to give it greater effect, was signed by the President. On the 28th of November, 1795, a treaty was made with Algiers, by which a passport was to protect our vessels from capture by Algerian cruisers. By the act of the Ist of June, 1796, ch. 339, Congress authorized the Secretary of State to prepare a form, which, when approved by the President, should be the form of passport. Neither the treaty nor the law required the President's signature, but the form prepared was signed by the President, as the sea-letter had been. But this, our peculiar practice, forms no rule of conduct obligatory on others; and will not authorize us to give a more restricted meaning to the term used in a treaty than the general usage of nations will warrant. The word passport, thus used, is taken from the same word, signifying a permission given to individuals to remove from one place to another, and the documents are analogous. Vattel states, that, 'like every other act of supreme cognizance, all safe-conducts or passports flow from the sovereign authority; but the prince may delegate to his officers the power of furnishing them, and with this they are invested, either by express commission, or in consequence of the nature of their function. A general of an army, from the nature of his post, can grant them; and as they are derived, though mediately, from the same prince, all his generals are bound to respect them.' So also Blackstone speaks of the offense of violating passports or safe-conducts granted by the king or his ambassadors." The Amiable Isabella, 6 Wheat. (U. S.) 15.

PATENT LAW-See alsó DEDICATION, vol. 5, p. 395; INFRINGEMENT, vol. 10, p. 726; INVENTION, vol. 11,. p. 780; LICENSE IN PATENT LAW, vol. 13, p. 557.

[blocks in formation]

claimer Must be Made, 35.

(e) Effect of Disclaimer, 36.

21. Reissue, 36.

(a) When Patent

Can be

Surrendered, 36.

(b) Surrender, 37.

(c) Action of Commissioner in Granting Reissue; How Far Reviewable in the Court, 39.

(d) What Can be Included in a Reissue, 40.

(e) Combination, Process, Product, Machine, 44.

(f) Estoppel, 46.

(1) By Matters in the Application for a Patent, 46.

(2) By Abandonment, 46. (g) Reasonable Time in Applying for Reissue, 47. (h) Partial Invalidity, 48. (i) Reissued Patent, 48.

V. Novelty, 49.

1. Definition of Patentable Novelty, 49.

2. Presumption of Novelty; Novelty Essential to Patentability, 51.

3. Intrinsic Evidence of Nov-
elty, 51.

4. Date of an Invention, 52.
(a) As Between Rival In-
ventors, 52.

5. Diligence, 53.
6. Anticipation, 53.

(a) By Invention of Third
Parties, 53.

(b) Experiment, 55.

(c) Concealed Invention, 57.
(d) By Publication, 57.
(e) Knowledge of Prior De-
vice or Description, 59.
(ƒ) Must be Prior to Date of
Invention, 59.

7. Novelty with Reference to
Foreign Inventions, 59.
8. Novelty with Reference to
Combinations, 60.

VI. Public Use, 60.

VII. Utility, 62.

1. General Principles, 62.

2. Degree of Utility Requisite,

[blocks in formation]
[blocks in formation]
[blocks in formation]

(b) Prior Patent

scription, 86.

(c) Public Use, 86.

or

De

(d) Surreptitiously Obtaining a Patent, 86.

(e) Abandonment, 87. (f) Lack of Utility, 87. 2. Notice of Special Defenses, 87.

(a) Where Prior Invention, Knowledge or Public Use Is Alleged, 88.

3. Not Statutory, 89.

(a) Statute Not All Embrac-
ing, 89.

(b) Defenses in Relation to
the Grant of the Patent
or the Application, 90.
(c) License or Release;
Estoppel, 90.

(d) Expiration or Repeal of
Patents, 91.

(1) Prior Foreign Pat-
ents to Inventor, 91.
(2) Limitation of Term
Because of Prior
Foreign Patent,

[blocks in formation]

1

2. Presumption, 101.

(a) Relating to Patents, 101. (b) Presumption of Non-infringement, 102.

3. Fudicial Notice, 103.

4. Documentary Evidence, 104.
(a) Certified Copies, 104.
(b) Other Documents, 104.
(c) File Wrapper and Con-
tents, 104.

5. Exhibits, 105.

(a) Prior Devices, 105.

(b) Model of the Invention,
105.

6. Expert Evidence, 105.
(a) Relevancy, 105.
(b) Irrelevancy, 105.

7. Evidence of the State of the
Art, 106.

8. Evidence of Prior Use or Lack of Novelty, 107. Privilege, 108.

XVIII. Practice, 108.

1. Generally, 108.

2. Cross-bills, 109.
3. Bill of Revivor, 109.
4. Stare Decisis. 110.

5. Res Judicata and Lis Pen-
dens, III

6. Trial at Law, 112.

7. Final Injunction; When Granted, 112.

8. New Trial and Arrest of Judgment, 115.

9. Re-hearing, 115.

[117. 10. Proceedings on Accounting, 11. Costs, 118.

12. Bills of Review, 120.

13. Attachment for Contempt,

[blocks in formation]

2. Repeal of Patent from the United States, 127.

XXIII. Property in Patents (See also LICENSE, vol. 3, p. 514), 128. 1. Generally, 128.

2. Kind of Property, 128.
3. Foint Owners, 129.
4. Assignment, 130.

(1) Definition, 130.

(2) Definition of Grant, 130. (3) Rights and Liabilities of Territorial Grantee,

130.

(4) Requisites of Assignment, 130.

(5) Formal Requisites of Assignment or Grant, 131. (6) Assignor, 132.

(7) Execution and Proof of
Assignment, 133.

(8) Condition, 133.
(9) Covenants, 133.

'10) Implied Warrantee, 134. 5. Assignment of Unpatented Invention, 134.

6. Recording Contracts, 135. (1) What May be Recorded, 135.

(2) Effect of Recording, 136. 7. Agency, 137.

8. Other Contracts Respecting Patent Rights, 137.

9. Royalty, 138.

10. Actions on Contracts, 139.

(1) Specific Performance, 139. (2) Rescission of Contract,

[blocks in formation]

I. PROPERTY RIGHT IN AN UNPATENTED INVENTION.-An unpatented invention vests in the discoverer an inchoate right to its exclusive use. This right can be the subject of assignment2 and other contracts and will be protected against those who, in breach of confidence, undertake to convert it to their own use or to betray it.3 It can be made absolute by patenting it. This right, however, does not extend to giving the inventor any rights against the public or those who, in good faith, acquire a knowledge of the invention.5

II. CONSTITUTIONAL PROVISIONS.--Authority is given by the constitution to promote the progress of science and the useful arts, by securing to inventors for limited time the exclusive right to their discoveries.6

III POWER OF CONGRESS OVER THE GRANT OF PATENTS.-The constitution vests in Congress alone the right to grant patents for inventions. This power may be exercised, as it usually is, by general laws; or Congress, in its discretion, may grant patents to inventors outside of the general law, subject only to the limitation, that the grant must be to the inventor, or his legal representa

1. Gayler v. Wilder, 10 How. (U. S.) 477; Evans v. Weiss, 2 Wash. (U. S.) 342; Jones v. Sewall, 6 Fish. Pat. Cas. 343

2. Gayler v. Wilder, 10 How. (U. S.) 477; Clum v. Brewer, 2 Curt. (U. S.) 506; Wright v. Randel, 19 Blatchf. (U. S.) 495 ; s. c., 21 Pat. Off. Gaz. 493; s. c., 8 Fed. Rep. 591.

It makes no difference that the machine was imperfect at the time of sale, if the inventor agrees to perfect and patent it. Rathbone v. Orr, 5 McLean (U. S.) 131. Nor does it matter that it was made after rejection by an appeal from the Commissioner of patents. Gay v. Cornell, 1 Blatchf. (U.S.) 506. Even if no letters patent could be obtained. Hammond Mason etc. Organ Co., 92 U. S. 724; s. c., 5 Pat. Off. Gaz. 31.

υ.

3. Peabody v. Norfolk, 98 Mass. 452; Solomon v. Hertz, 35 Pat. Off. Gaz. 1109.

Equity will take jurisdiction to enjoin a breach of trust or contract similar to its protection of trade secrets. Peabody v. Norfolk, 98 Mass. 452. See also INJUNCTIONS, vol. 10, p. 949. 4. Gayler v. Wilder, 10 How. (U. S.) 477.

5. Peabody v. Norfolk, 98 Mass. 452; Marsh v. Nichols, 128 U. S. 605. The courts are without jurisdiction to issue an injunction against an infringer of an unpatented invention.

Rein v. Clayton, 37 Fed. Rep. 354. Disapproving a decision to the contrary in Butler v. Ball, 28 Fed. Rep. 754, where an injunction issued while the application for the patent was pending.

Several circuit courts have declared that the inventor has no right of property in the invention until patented. Sargent v. Seagrave, 2 Curt. (U. S.) 553; Ex parte Robinson, 4 Fish. Pat. Cas. 186; s. c., 2 Biss. (U. S.) 309; Wheaton v. Peters, 8 Pet. (U.S.) 591.

on

The supreme court has said the same thing but with the qualification: “No right of property which he can maintain suit." Brown v. Duchesne, 19 How. (U. S.) 183. Or "No exclusive right." Gayler v. Wilder, 10 How. (U. S.) 477.

6. Const. U. S., art. 1, § 8.

"Secure" does not mean the protection of an acknowledged legal right, but the creation of a new one. Wheaton v. Peters, 8 Pet. (U. S.) 591.

However, the "securing" is sufficiently the securing of a right to make it unlawful for the United States to appropriate it without compensation. James 7. Campbell, 104 U. S. 356; United States v. Palmer, 128 U. S. 271. 7. Const. U. S., art. 1, §§ 6-8.

8. Blanchard v. Sprague, 3 Sumn. (U.S.) 535; s. c., 2 Story (U. S.) 164;

« SebelumnyaLanjutkan »