two witnesses, though most other copyrights may be assigned by writing not under seal. Copyright in designs for ornament and of utility. -There are two kinds of copyright in designs, one where the designs are for ornament, and the other where the designs are for utility. But the utility must be combined in some way with the shape and configuration of the parts. The copyright in designs for ornaments is founded on statutes, which define such designs as including every design applicable to the ornamenting of any article of manufacture, or of any substance artificial or natural, or partly artificial and partly natural, and whether such design be so applicable for the pattern or for the shape or configuration or for the ornament thereof, or for any two or more of such purposes, and by whatever means such design may be so applicable. The proprietor of the design may be either the author or the employer, if a good and valuable consideration shall have been given by such employer to the author.3 And while he is proprietor, he can obtain an injunction not only against the sale, but the manufacture of articles containing this design. These statutes contain a variety of detailed provisions as to the mode of transfer and registration, and the remedies for piracy. The period for which the copyright is conferred depends on the fabric or material to which the design is applied, and extends from nine months to five years from the date of registry, subject to extension of the period. 5 Copyright has also been conferred on the author of designs of utility, so far as such designs are for the shape or configuration of an article of manufacture, for a period of three years. 4 154 Geo. III. c. 56, § 4. 25 & 6 Vic. c. 100, § 3; 6 & 7 Vic. c. 65; 13 & 14 Vic. c. 104; 21 & 22 Vic. c. 70 ; 24 & 25 Vic. c. 73; 38 & 39 Vic. c. 93. 3 5 & 6 Vic. c. 100, § 5; 6 & 7 Vic. c. 65 ; 13 & 14 Vic. c. 4 McCrae v Holds 55 & 6 Vic. c. 100, § 3; 13 & 14 Vic. c. 104; 21 & 22 104, § 16; 24 & 25 Vic. c. 73; 38 & 39 Vic. c. 93. CHAPTER XII. PATENT RIGHT AND TRADE MARK. Patent right generally.-Patent right is the exclusive right to make and use for sale articles of a material form made in a certain way, or use certain processes connected with such articles, and which the patentee by his own ingenuity invented. And though a patent has long assumed the form of a gift and a licence from the Crown, as if it conferred a privilege which he had no right to, it is obvious that as in the cognate case of copyright no man ever could at any stage of society be indebted to the sovereign, or to the legislature, for the faculties which have enabled him to mature his invention. And yet he cannot reap the natural reward and derive the reasonable profit of his own ingenuity without undergoing the forms of accepting a gift of what is peculiarly his own, and submitting to conditions accompanying that gift imposed on him by strangers, who in no degree helped him in any part of his discovery. In this last particular he is in a worse case than authors of books asserting their copyright. The ancients in all that regards this chapter of the law had not arrived at that stage of civilization, which brings out prominently the merits of inventions and which singles out such a vocation for protection in any shape. Their views at best were distorted by ignorance and superstition. All our knowledge and experience of this subject come from the last two or three centuries.1 1 A cook or confectioner was among the ancient Athenians entitled to a kind of patent right or monopoly for a year, when he invented an excellent dish.-Athen., b. 12, c. 20. Tiberius, when an ingenious man one day brought him as a novelty a cup of flexible Distinction between copyright and patent right.-The holder of a patent has often been unjustly confounded with the grantee of a monopoly, but the distinction is apparent. A monopolist is he who has the exclusive right of buying and selling, or making a particular article which any other person might previously buy or sell or make: whereas a patent springs from the secret thought of the inventor in precisely the same manner as a book springs from the secret thought of the author. Each can publish and communicate it or not, as he thinks fit. No power can compel him to do so. And up to a certain stage the inventor and the author stand in precisely the same position. But such was the confusion of thought that surrounded this and other subjects, that when the Statute of Monopolies was framed in 1624, declaring all monopolies thenceforth illegal, the legislature of that day deemed it prudent if not necessary to make an exception in favour of patentees for a period of twenty-one years. The Statute of Monopolies under the disguise of a gift to inventors really took away from them the main value of that gift and cut it down to a mere transient benefit of a few years duration. The legislature was however careful to confine the substance of this gift to "the true inventor of such manufactures which others did not then use," and even then there was a further prudent qualification, that the manufacture should not be mischievous to the State, which is a somewhat obscure qualification, yet is one which is common to all departments of law and every species of property and valuable interest. Though the industry and ingenuity of man may affect all kinds of matter and extend to mental and intellectual subjects, yet the objects and scope of patents have always been contradistinguished from those of mere pictures and words and musical sounds. Patent right always contemplates some tangible and material adaptation or arrangement which can be handled, and weighed, and glass, took care to cut off his head, as such an invention was certain to depreciate the precious metals.-Plin. Hist. Nat. 36, 66. The Emperor Charles V. acted more liberally, for he visited the grave of the man, who invented the art of curing herrings, and erected a magnificent tomb.-Laing's Norway, 370. 1 Coke 3 Inst. 181. measured so that though artistic and intellectual results are classed under the generic title of copyright, the analogous right in reference to material appliances is called by the name of patent right. The laws of matter are the field of research for the patentee, and cover a vast and illimitable range for the curiosity of man; and the results arrived at by thought and ingenuity in analysing and combining matter and force in endless varieties, and which enable mankind to acquire new comforts and enjoyments at a constantly decreasing expenditure of labour, give rise to this species of property. No limit can be assigned to the power of man thus to turn common materials into unforeseen uses and create fresh subjects of property. It has already been seen, that in early times. the Crown assumed power to grant letters patent to printers, and granted privileges in the nature of exclusive rights relating to different subjects. It also assumed to grant privileges to individuals to trade in certain articles, and thereby prohibit others from interfering. And whether this right ever was legal or not, the legislature assumed it to be so; and having the power to declare anything legal it recognised this power as an exception to the abolition of all monopolies in the time of James I.1 Though copyright and patentright agree in the fundamental basis, namely, that of protecting a man in his work and securing to him the natural fruit of that work, they differ in some essential points. In the case of books, no 1 The 21 Jas. 1 c. 3, § 6, declared all monopolies to be void, "except patents and grants of privilege for the term of fourteen years or under, hereafter to be made of the sole working or making of any manner of new manufactures within this realm to the true and first inventor and inventors of such manufactures which others at the time of making such letters patent and grants shall not use, so as also they be not contrary to law nor michievous to the State by raising prices of commodities at home, or hurt of trade, or generally inconvenient, the said fourteen years to be accounted from the date of the first letters patent or grant of such privilege.' It has been held, that the essential virtue of the patent is not ascribed to the statute, but is a gift from the Crown as part of its prerogative. And though monopolies were held to be illegal at common law as well as declared by statute so to be, yet there was a power reserved to the Crown to grant some monopolies, provided they could be shown to be productive of advantage to the community. Feather v R. 6 B. & S. 285. two authors could express their thoughts in the same order of words, which is the subject-matter of the property called copyright; and therefore the product of one is always ear-marked and distinguishable from that of another. And as all men may write books on one and the same subject, there can be no ground for interfering with each other's work, at least directly, and it is enough to prevent each from stealing from his neighbour's heap. With regard to patentable articles, it is found that the patent includes not only the product, but one particular way of making that product; and hence the ingenuity of workmen is more directly hampered by a patent than by copyright, for two finished articles may be identical in appearance and yet made by different processes. It is the difference in the process which, unless what is called a new combination is the characteristic, enables one patentee to prevent and so interfere with his neighbour's industry. In the making of books the product must always be different, and as to the process by which it is made, no court can inquire, for whether a book is the inspiration of a moment or the fruit of many years' labour, nothing can turn on this part of its merit so as to interfere with others trying to obtain the like inspiration and the like industry. Hence patents tend to interfere more with rival tradesmen making the same product by the same process; and it is difficult for inventors and for courts to know and lay down rules so as to indicate when the process is or is not infringed upon. Thus copyright applies to products more clearly identified, and does not interfere with any other rival processes for producing the same result. And hence, though the legislature may have dealt unjustly in confiscating the author's copyright which in no way interferes with other men's ingenuity and labour on precisely the same subject and by precisely the same means, yet it is less unjust towards patentees in confiscating their rights, on this very account of the clashing with rival workmen equally ingenious, and equally desirous of obtaining profit by such ingenuity. Confusion in early ideas of patent right.—Such was the obscurity and confusion of ideas regarding the object, the origin, and meaning of patents, that judges at one time took credit to themselves for being no favourers of Y |