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protection of the mails was held by the Supreme Court to justify sending troops into the State of Illinois to put down a riot, although such troops had not been requested either by the Legislature or Executive Department of the State. In an elaborate argument on this question the Court said in part: "Under the power vested in Congress to establish post-office and post-roads, Congress has, by a mass of legislation, established the great postoffice system of the country, with all its detail or organization, its machinery, for the transaction of business, defining what shall be carried and what not, and the price of carriage, and also prescribing penalties for all offenses against it. *

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"The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care. The strong arm of the National Government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the Nation, and all its militia, are at the service of the nation to compel obedience to its laws."82 The Court also decided in this case that such protection could be enforced by the use of the injunction.

§ 150. Patents.-Clause 8: (The Congress shall have power) "To promote the progress and science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The right of property which authors and inventors in this country possess in their writings or discoveries rests entirely upon this provision of the United States Constitution and the statutes passed in pursuance thereof.

Patents first arose in England as a part of the old system of general monopolies created by royal grant, by which individuals were given the exclusive right to a particular trade or monopoly. These general monopolies finally became so oppressive to the people that they were abolished by the "Act Concerning Monopolies;" but this statute excepted letter patent and grants of privilege of the sole working or making of any man

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82 21 Jac. 1, cap. 3.

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ner of new manufacture within this realm to the first and true inventor or inventors." The English system of patents rests upon this exception in the statute against monopolies, and in contemplation of law is dependent upon royal favor. The great departure in the United States Constitution from the English law on this subject consists in the fact that the granting of patents to inventors was made a matter of right instead of being, at least in theory, a matter of favor. The Supreme Court. in Wilson v. Rousseau et al.84 compared the position of an inventor under the common law, and under the United States Statutes: "At common law, the better opinion, probably, is that the right of property of the inventor to his invention or discovery passed from him as soon as it went into public use with his consent; it was then regarded as having been dedicated to the public, as common property, and subject to the common use and enjoyment of all.

"The act of Congress for the encouragement of inventors, and to promote the progress of the useful arts, and for the purpose of remedying the imported protection, or rather want of protection, of this species of property, has secured to him, for a limited term, the full and exclusive enjoyment of his discovery.

"The law has thus impressed upon it all the qualities and characteristics of property, for the specified periods; and has enabled him to hold and deal with it the same as in case of any other description of property belonging to him, and on his death it passes, with the rest of his personal estate, to his legal representative, and becomes part of the assets."

Congress has plenary power to grant patents for inventions;85 it may exercise this power either through general acts or by granting patents to particular inventors by special acts.86 This power must not be exercised, however, so as to infringe any existing patent rights.87 It may grant a new and extended term after

83 See English and American Encyclopedia of Law, 2nd Edition, Vol. 22, p. 270; Robinson on Patents, 1 et seq.

844 Howard, 646, 652.

5 Evans v. Eaton, 7 Wheaton,

356; Seymour v. Osborne, 11 Wallace, 516, 540.

Blanchard v. Sprague, 3 Sumn. 535; Marsh v. Nichols, 128 U. S. 605.

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McClurg v. Kingsland, 1 Howard, 202, 206.

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the original term of the patent has expired;ss or for an invention already being used by the public. All such special acts for the relief of inventors will be construed so as to harmonize as far as possible with the general laws on this subject." Congress does not have the power to authorize an inventor to recall rights which he had granted to others, or to reinvest an inventor with rights of property which he had before conveyed for a valuable and fair consideration." The object of the granting of patents is to benefit the public by encouraging inventions.92 While the rights of the public are superior to those of the inventor, nevertheless the rights and interests of the latter will be carefully protected. "To promote the progress of useful arts is the interest and object of every enlightened government. It entered into the views of the framers of our Constitution. *** It is the reward stipulated for the advantages derived by the public for the exertions of the individual, and is intended as a stimulus to those exertions. The laws which are passed to give effect to this purpose ought, we think, to be construed in the spirit in which they have been made; and to execute the contract fairly on the part of the United States, where the full benefit has been actually received: if this can be done without transcending the intention of the statute, or countenancing acts which are fraudulent or may prove mischievous."94 The United States Government cannot appropriate or use a patented invention or discovery without the permission of the person owning the patent, or without giving just compensation, any more than it can appropriate or use, without compensation, land which has been patented to a private purchaser.95 Laws on the subject of patents can have no extra-territorial effect. That the right of property which a patentee has in his invention, and his right to its exclusive use, is derived altogether from the statutory pro

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visions; and this court has always held that an inventor has no right of property in his invention, upon which he maintains a suit, unless he obtains a patent for it, according to the Acts of Congress; and that his rights are to be regulated and measured by these laws and cannot go beyond them.

"But these Acts of Congress do not, and were not intended to operate beyond the limits of the United States; and as the patentee's right of property and exclusive use is derived from them they cannot extend beyond the limits to which the law is confined."

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The right secured inventors by patents is that of protection against their unauthorized use by others, but this does not carry with it any unlimited and unrestricted right on the part of the inventor himself to use his own invention. Such right is subservient to the Police power of the United States and of the individual States.97 The production and sale of a patented article or machine, however, can only be restricted as the production and sale of non-patented articles may be. The patent for a dynamite powder does not prevent the State from prescribing the conditions of its manufacture, storage and sale so as to protect the community from the danger of explosion. A patent for the manufacture and sale of a deadly poison does not lessen the right of the State to control its handling and use.98

The United States can grant no perpetual patents; the length of time for which they shall be granted is to be determined by the discretion of Congress." Congress also has the power to decide who are authors and inventors, but the courts will never presume Congress to have decided that question in a general act in favor of any particular individual, unless the wording of such act renders such a construction unavoidable.100

§ 151. Copyrights. Under the common law a producer of any intellectual work had the right of first publication of his work, but not the continued right of exclusive publica

Brown v. Duchesne, 19 Howard, 183. "Patterson v. Kentucky, 97 U. S. 501.

Is Webber v. Virginia, 103 U. S.

344, 347.

Pennock v. Dialogne, 2 Peters,

1, 16.

100 Evans v. Eaton, 3 Wheaton, 454, 513.

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tion. This latter right was only secured to him by statute. In the United States statutes a copyright in a book is defined to be "the sole liberty of printing, reprinting, publishing and vending the same. This right depends absolutely upon the Constitution and statutes of the United States. It is for Congress to say when, for what length of time, and under what circumstances copyrights shall be issued. Congress has given a very wide scope to the copyright. All kinds of printed matter, together with maps, charts, pictures, prints, statues, models and photographs may be protected. For example, it has been that Congress may provide for copyrights on photographs as works of art or science as far as they are representatives of original intellectual conceptions of the author.102

This clause gives Congress no power to legislate on the subject of trademarks. Such power as the United States may have over trademarks arises out of their power to regulate commerce, and is restricted in its application to interstate commerce.1

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$152. The establishment of inferior Federal tribunals.— Clause 9: (The Congress shall have power) "To constitute tribunals inferior to Supreme Court." The Constitution provides directly for the creation of the Supreme Court. The power here granted to Congress to constitute inferior tribunals will be considered in the chapter on the judicial department of the United States Government.

§ 153. Piracies and offenses against the law of nations.— Clause 10: (The Congress shall have power) "To define and punish piracies and felonies committed on the high seas and offenses against the law of nations." "To define piracies, in the sense of the Constitution, is merely to enumerate the crimes which shall constitute piracy, and this may be done either by a reference to crimes having a technical name and determinate extent, or by enumerating the acts in detail upon which the pun

101 U. S. Rev. Stat., S. 4952.

102 Wheaton v. Peters, 8 Peters, 590, 591.

103 Blanchard v. Sprague, 2 Story,

164; United States v. Steffens; United States v. Witterman, and United States v. Johnson et al., 100 U. S. 550.

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