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leuse qu'aurait fait un ouvrier de l'invention découverte par son maître, antérieurement à la prise du brévet, ne peut être invoquée pour repousser le délit de contrefaçon imputé, après la prise du brévet, par le maître à l'ouvrier."-Journal du Palais, Paris, July 5, 1845.(x)

16. The public use of an invention in any part of the United Kingdom, or the colonies, will be fatal. In Roebuck and Garbett's case, a Scotch patent provided that letters patent should be void, if it were found that the subjectmatter of them was not new as to use and exercise in Scotland; the House of Lords, affirming the judgments of the Lords of Session and the Lord Ordinary, determined, that the appellants were entitled to prove that the invention had been used in England before the date of the patent.(y)

If an invention is found not to be new in the colonies, a patent for it here would be void, for they are part of the realm. The enrolment of the specification or any publication of the invention in one part of the realm, before the patent is sealed for another, seems to have the same effect.(*)

17. The recent statute has effected a most important alteration in the law with respect to the time during which the use of an invention would vitiate a patent. Until the passing of that Act, the patentee was never secure until his patent was sealed; nor even then absolutely. Now he is safe as soon as he has obtained provisional protection. (a) Inventors laboured under great difficulties in being compelled to use the utmost secrecy in any experiments they might think it desirable to make before the sealing of the patent. The time limited for specifying was often found insufficient to enable the patentee to make proper trials of his invention before enrolling his specification, especially where the patent was for complicated machinery new in principle. Now, however,

(x) Codes Annotés, tome ii. table générale 11. Teulet. D'Auvilliers et Sulpicy, Paris, 1850.

(y) Roebuck and Garbett, appellants, Stirling, respondent, Webst. P. C. 45, 451 n.; Brown v. Annandale, Webst. Pat. Ca. 433.

(2) Robinson's patent, 5 Moo. P. C. 65; Samuda's patent, Hindmarch on Patents, 534.

(a) See stat. 15 & 16 Vict. cap. 83, ss. 8, 9.

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should a workman or other person steal the idea of the inventor, and apply for a patent in his own name, the right of the true inventor to his patent will not be affected, if he applies for it before the expiration of the term of the provisional or other protection. And the advertisement of the protection granted, directed by the Commissioners of Patents, will give the true inventor notice that his patent is in danger. The question of prior use is for the jury.

CHAPTER VI.

Imported Inventions.

1. BEFORE the coming into operation of the recent statute, persons who had learned the invention abroad, and imported it into this country, where it was not used or known previously, were able to obtain patents, as the first and true inventors within the meaning of the statute: it was enough if the invention was new within the kingdom. (a) In The Clothworkers of Ipswich case, in 12 Jac. 1, it was resolved, that if a man hath brought in a new manufacture and new trade within this kingdom, in peril of his life and consumption of his estate or stock, in such case the king, of his grace and favour, in recompense of his costs and travail, may grant by charter unto him, that he only shall use such a trade or traffic for a certain time, because at first the people of this kingdom are ignorant, and have not the knowledge or skill to use it. (6) The Act intended to encourage new devices useful to the kingdom, and whether learned by travel or study it is the same thing.(c)

2. The Act leaves the case of inventions which have never been protected by letters patent abroad, precisely as it was before the statute, and therefore any person may still import and obtain a valid patent for the full term for any such invention. But it was probably considered, that from the increased habits of inter-communication amongst nations, such an invention, if valuable, would probably have either become known in this country, or would have been kept so secret as to

(a) Beard v. Egerton, 3 C. B. 97, 128; see Stead v. Williams, 7 M.

& G. 818.

(b) The Clothworkers of Ipswich case, Godbolt, 252. Edgeberry v. Stephens, 2 Salk. 447.

warrant the grant of a privilege to any one introducing it here.

3. The Patent Law Amendment Bill of 1852, originally contained a clause, which provided that the use or publication in any foreign country, or in any of the Channel Islands, or in any of her Majesty's colonies, dominions, or possessions abroad, of any invention before the date of any letters patent to be granted for such invention, under the provisions thereinbefore contained, should have the like effect with respect to such letters patent as if such use or publication had taken place in the united kingdom of Great Britain and Ireland. This provision was, however, struck out by the select committee in the House of Commons. The clause, as it stands in the Act, provides "that no letters patent for any invention, for which a patent or the like privilege shall have been obtained in any foreign country, and which shall be granted in the United Kingdom upon any application made after the passing of that Act, and after the expiration of the term granted by the foreign patent, shall be of any validity." (d)

4. The practical difficulties in the working of this clause may turn out to be considerable. It will be probably necessary to issue a commission to the foreign country in which the invention is said to have been patented, and a plaintiff may be delayed a long time under pretence of that commission. (e) In some countries, as in Prussia, where the specifications registered are not accessible to the public, unforeseen obstacles may arise in the proof of their contents.

5. Where, upon any application made after the passing of that Act, letters patent are granted in the United Kingdom, for or in respect of any invention first invented in any foreign country, or by the subject of any foreign power or state, and a patent or like privilege for the monopoly or exclusive use or exercise of such invention in any foreign country is there obtained before the grant of such letters patent in the United Kingdom, all rights and privileges under such letters patent shall, notwithstanding any term in such letters patent limited, cease and be void immediately upon the expiration or other determination of the term during which the patent or like

(d) Stat. 15 & 16 Vict. cap. 83, s. 25.
(e) See Report on Patents, 1851, p. 376.

privilege obtained in such foreign country shall continue in force; or where more than one such patent or like privilege is obtained abroad, immediately upon the expiration of the term which shall first determine of such several patents or like privileges. (f)

(f) Stat. 15 & 16 Vict. cap. 83, s. 25. Where several patents are to be taken out in different countries, it is desirable that the applications should be as nearly as possible contemporaneous. Since 1844, no one can obtain a patent in France for an invention previously patented in another country, except he be the original patentee, or his assignee. The original patentee, or his assignee, may obtain his patent at any time before the expiration of the patent in his own country; but the patent in France will only last as long as the patent in his own country continues. The right of patenting an invention does not extend to that inventor whose invention has been described and published in a foreign country, by printing the specification and making it open to all the public.* If the patent is first taken out in France, the French patent may be avoided by non-user, or non-payment of the annual sum of 100f., or if the patentee imports the patented articles from abroad. In America, the patentee must be strictly the original and first inventor. An alien may take out a patent. By the Act of Congress of 1839, cap. 88, s. 6, no person shall be debarred from receiving a patent by reason of the invention having been patented in a foreign country more than six months before the date of his application, provided the same shall not have been introduced into public and common use in the United States prior to the application for the patent. It seems that an alien has six months from the grant of his patent in a foreign country, and more, if in the mean time the invention does not get into use in America.-Curtis on Patents, ss. 114-116.

* Report on the Patent Law Amendment Bills, 1851, p. 331. Wolowski. Truffaut, Guide Pratique des Inventeurs, pp. 72-86. Paris, 1844.

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