An Introduction to the lLaw of Patents

AuthorBy Lieutenant Colonel George F. Westerman
Pages05
  1. ISTRODUCTIOK

    The strength of our American way of doing things has derived, in large part, from the fact that it has provided powerful incentives to all persons to invent products for the common good. The patent System is an important part of this overall scheme. Reduced to its lowest terms, the patent System is a means of stimulating, not only the making of inventions, but also discovering methods for their practical utilization. Although this sounds disarmingly simple, if you were to make a quick review af American progress, you would be amazed by the fact that most of our advancement and well-being originated with invention and its practical utilization for the common good.

    Reflection of this progress in the field af national defense is obvious from such patents as those granted on Colt's Six-Shooter,' the Gatling Machine Gun,# Bell's Telephane,3 Xarconi's Wireless Telegraph,' the Wright Brothers' Airplane,j and countless other implements essential to the conduct af war. Consequently, it is important that all Army personnel, particularly those dealing with research and development or procurement, acquire an understanding of a few basic principles of patent law.

    11. HISTORICAL BACKGROUND

    During the classic period in ancient Greece and Rome, the useful arts were regarded more or less with contempt, and although a few rugged individualists like Archimedes made imentions, they were looked on as mere frivolities, scarcely befitting a philosopher, Nevertheless, in the fifth and sixth centuries B. C., the Greek city of Sybaris held cooking conteata in which the inventor of a new

    * The opinions or conclusions pyesented herein are those of the author and do not necessarily repreaent the viou.ôf The Judge Advocate General's School or any other governmental agency.

    ** JAGC, U.S. Army; Chief, Patents Division. Office of the Judge Advocate General. Department of the Army: B.S. (Elee. Engr.), Univernty of Wiseonsin, 1939: LL.B.. Univeraity of Wlaeonsln, 1941: member of Bars of Supreme Court of Wiaeansin, Cnited States Supreme Court, United States Covrt of Claima, United Statea Covrt of Cvatoms and Patent Appeala, and United States Covrt of Military Appeali.

    I U.

    S. Patent granted S. Colt on Feb. 25, 1836.

    S. Patent KO. 36.836 granted to R. J. Gatling on Nav. 4, 1862.8 U. S. Patent No. 114.461 grantad to Alexander Graham Bell on March 7,1876.

    4 U. S. Patent No. 386,193 granted to G. hlareom on July 15, 1897.

    I U. S. Patedt Yo. 821,398 granted to Orville and Wilbur Wright on May 22, 1906.

    * U.

    dish was given an exclusive right to prepare it during one year.' This was probably the earliest patent system, anticipating our own by about 26 centuries. It worked so well that people of Sybaris achieved immortality as connoi~seur~in the art of eating and to this day, the aord "sybarite" is a synonym for epicure.

    Long before 1400, the Government of Venice was interested in inventions and officials were appointed to examine inventors' projects. After 1460, the grant of patents became quite systematic in that country. The main craft of Venice was glassmaking, the secrets of which were so jealously guarded that the death penalty awaited Venetian glass-blouers who tried to practice their art abroad. However, glase was then so precious that in spite of this danger many Venetian artists took the risk of establishing works abroad and, being familiar with the Venetian patent system, the first thing they sought in foreign countries was a monopoly for the new methods they brought with them. In this way, patent systems were introduced in various countries during the 16th century. Consequently, many of the early patents were granted for glass manufacture and numeroud Italians were among the first patentees in a number of different countries.'

    During the Middle Ages it was common practice in England and in various countries of Western Europe for the sovereign to grant to individuals, monopolies of the right to make or sell specified commodities throughout the kingdom.8 Sometimes, as in the case of the Venetian glass-blowers, these monopolies were given to artisans from abroad to induce them to migrate to England and to introdwe there an art that had been developed in a foreign country.8 ('icas;una!ly, they were granted to inventors within the realm as reward :or their inventive efforts and as incentive to others to make similar contributions to technological advance. At other times, and with increasing frequency, they were bestowed on court favorites or were sold to provide funds for the royal treasury These grants were evidenced by open letters or "letters patent" from the king; by association, the term "patent" came to signify the grant itself.

    The practice of granting monopolies was so abused in England that eventually many of the necessities of daily life were contrailed by the holders of Letters Patent. Iran, oil, vinegar, coal, lead, yam, leather, glass, salt, and paper were but a few of the eom- I Frumpkin, The Origin a i Pafmfs, 27 J. Pat. Off Soe'y 143 (1941).i Frumpkin, op. oit. bupm note 6, at 144.8 Walker, Patents 2 (Deller ed. 1937)t The earlieat known initsnce of B royal grant to foreigners is the letters of protection given to John Kempe and his company, Flemish weavers. by Kmg Edward Ill of England in 1331. 18 J. Pat. Off. SOC'Y 20 (1936) (Cen-tennial Sumber)101 *DO 80478

    LAW OF PATENTS

    modities which had been appropriated to monopolists and could be bought at only exorbitant prices.10 The situation became so bad that in 1623, Parliament passed an act declaring all monopolies void.)' In this Statute of Monopolies, however, specific exception was made to permit the granting of monopolies for limited times, for the ''sole working or making of any manner of new manufacturers within this realm to the true and first inventor or inventors of such manufactures , . . ." This enactment provides the basis far the British Law of Patents.

    At that time patents were also granted in Germany and France. Henry I1 of France introduced a novelty which still remains a basic principle af patent law, namely, that an inventor must fuliy disclose his invention so that the public may benefit from it after the patent has expired.'#

    The American colonists chose to follow the English system, and ~everal of the colonies and states issued patents in their own names long before the Declaration af Independence.ls

    It is not surprising with this historical background that when the final draft af the Constitution was adopted in September 1787, it contained the specific provision that:

    Cangresa shall have the powe~ . . . to promote the pmgress of science and useful arts, by ~eevringfor limited times YO . . . inventor8 the ex. elnaive right to their . . . dincoverien.l*On April 10, 1790, President George Washington signed the bill which laid the foundations of the modern American patent System, and Samuel napkins of Philadelphia on July 31, 1790 received the first United State8 patent far a new process and apparatus for "Making Pot-ash and Pearl-ash" Since that time, a series of statutes have implemented the constitutional provision, the latest being Title 35 of the United States Code which became effective January 1,1953.

    During the Civil War, the Confederate States of America established a Patent Office which granted 266 patents, about one-third of which concerned implements of war.16 The Republic of Texas ais0 issued Datents Drior to joininn the Union.'6

    . . .~

    10 Walker, op. oit. suwa "ate 8, at 8.11 Statute of Monopolies, 1623, 21 dae. 1, e. S.12 Frumpkm, op. ctt. 8upm note 6, at 145.18 The first patent wanted in America was iiaued by the General Court of Mas3aehusetta ~n 1641 to Samuel Winalov far a novel method of making sdt. For B further discmaion of the early history a i patents m thla country, including colonial and state patenta, see 18 J. Pat. Off. Soe'y 35-51 (1936) (Centennial Number).

    14 u. s. connt. art. 1, 6 8, el. 8.1; U. S. Dedt of Commerce, The Story of the American Patent System, In Federico and Nun", A Fmiment of Term Xiatory, 18 J. Pat. OR. 1780-1952,at12 (1953).

    Sae'y 407 (1836).

    MILITARY LAW' REVIEW

    111. NATURE OF PATENT RIGHTS

    A United States Patent is a grant from the Government to an inventor of "the right to exclude other8 from making, using or selling the invention throughout the United States'' for a periodof seventeen :ears from the date the patent i3suea.Li In return, the inventor must make a complete public disclosure of his invention, thereby enablina other individuals and the public in general to benefit from it, perhaps through dtirnulation of new ideas from its disclosure and in any e\ent by u ~ e of the invention after the patent expires. In other words, the deal between the Government and the patentee is simply this: The Government agrees to give a seventeen year right l o exclude others in exchange for the inventor's disclosure of his invention to the public. The patentee must also clearly define the scope of the invention he claims,18 a necessary requirement to enable the Patent Office to state j ~ s t what he is getting by his patent and to acquaint others with the exact boundaries of the field to ahich the "no trespassing" sign applies. To give teeth to the right to exclude, the law permits the patentee to enjoin use of his invention by those not authorized by him to do so 12 and to sue for damages,21 just 89 one might sue any trespasser upon me's property. Unfortunately, the patentee often finds his right of exclusion illusory, for it is dependent upon the patent's validity which is subject to attack in court on numerous grounds. Although a patent is, prima fame, valid ahen issued.2'a very large proportion af patents which are litigated are eventu-ally held to be invalid.zg Most patents, however, nerer get into litigation, either because they are not infringed, because the patentee does not...

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