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CHAPTER III.

OF TITLE BY INVENTION.

We come now to the title by Invention, which includes Patent Rights, Copyrights, and rights to Trade Marks and Designs, all of which four classes or species of rights may with propriety be considered together, within the compass of the same chapter.

I.-PATENT RIGHTS.

What is a Patent Right. --By a “ Patent Right” is meant a privilege granted by the Crown to the first inventor of any manner of new manufacture, enabling the grantee to prevent all other persons from making, using, exercising, or vending during a limited period, the subject matter of the invention. The right is so called, because the instrument by which it is bestowed has always been in the form of letters-patent. To confer, indeed, on any individual the exclusive right of carrying on a particular trade or manufacture is, in general, beyond the lawful bounds of the royal prerogative ; for such a grant amounted, at the common law, to a monopoly (a), and by the Statute of Monopolies (21 Jac. I. c. 3), was declared to be "altogether contrary to the laws of this realm.” But an exception was made in favour of inventors of new manufactures, because with regard to them, grants of exclusive privileges for a reasonable period, while they tended to encourage useful ingenuity, encroached on no right of which others were already in possession (6). In accordance, therefore, with this exception of the common

(a) 3 Inst. 181.

(6) 3 Inst. 184; Darcy v. Allin (1602), 11 Rep. 84.

law, the Statute of Monopolies excepts, from its general operation, all letters-patent for the term of fourteen years or under, by which the privilege of sole working or making any manner of new manufactures within this realm, which others at the time of granting the letterspatent shall not use, shall be granted to the true and first inventor thereof, " so as they be not contrary to law, nor 6 mischievous to the state, nor to the hurt of trade, nor * generally inconvenient.”'

Since that statute, no patent right has been valid unless it falls within the terms of the exception above referred to (c); and accordingly no patent right can be legally granted (at least in the first instance) for any period longer than fourteen years, and the subject of the patent must be “a manner, of new manufacture within this realm." And, first, it must be a manufacture, which, broadly stated, means some fabricated article, or the means of making such an article. A patent may be taken out not only for an entire article, but also for an addition, by way of improvement, to one already existing, or for a new application of an old thing (d), or even for a chemical or other process of production (e). Secondly, the manufacture must also be new. A patent, therefore, granted for an article already used, or known, or communicated to the public in this country, whether the prior use or discovery be known to the patentee or not, would be void (f). It is sufficient that it be new within this realm at the time the patent is granted, the previous notoriety of the article, in a foreign country, being no objection to the validity of the patent (9). A thing or process is not “new,” in the sense referred to, if it has

(c) Boulton v. Bull (1795), 2 H. Bl. 486. (d) Crane

Price (1842), 4 Man. & G. 580; Gadd v. Man. chester (1892), 9 R. P. C. 516.

(e) Badische Anilin v. Lerinstein (1887), 12 App. Ca. 710.

(f) 3 Inst. 184; Hill v. Evans (1818), 8 Taunt. 401 ; Patterson v. Gaslight and Coke Company (1875), 3 App. Ca. 239.

(9) Rolls v. Isaacs (1881), 19 Ch. D. 268.

been already published in this country by means of prior user, or in books or documents, or disclosed to particular individuals not bound to secrecy. But by the Patents, etc. Acts of 1883 and 1886, the mere exhibition of an invention at a public show, which used to amount to a prior publication of it, will not have any such effect, provided the intending patentee give previous notice to the Patent Office of his intention to exhibit it, and within six months thereafter,make due application for his patent. Thirdly, it is now established that a patentable thing or process must involve some invention or ingenuity, and must possess the characteristic of utility, i.e., for the purpose indicated by the patentee (h). Fourthly, the applicant, or one of the applicants, for the patent must be the “true and first inventor." The word inventor implies some exertion of ingenuity, and supposes some difficulty surmounted ; so that when the new manufacture is of an obvious character, requiring no skill or contrivance for its production, it is not the fit subject-matter of a patent. And as to being the true and first inventor, no one can claim this character, if it appear that the novelty in question was first suggested to him by some other person in this country ((); but where the secret is acquired abroad by one who afterwards introduces it into this realm, he is considered (for the purpose now under consideration) as the true and first inventor. For it is immaterial whether the benefit bestowed on the public be the result of a man's travel and observation, or the fruit of his original genius (k). In the case of two simultaneous discoverers, he who first procures a patent, before the matter is made public, is entitled to enjoy the exclusive privilege it confers.

V.

() Dorling v. Billington (1890), 7 R. P. C. 191; Lane-Fox v. Kensington Co., [1892] 3 Ch. 424 ; Welsbach Co. v. New Incandescent, etc. Co., [1900] 1 Ch. 843.

(i) Marsden Sarille Street Co. (1878), 3 Ex. D. 203.

(k) Harris v. Rothwell (1887), 35 Ch. D. 416.

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Procedure for obtaining letters-patent.—The grant of a patent right is not ex debito justitie, but is an act of royal favour ; though in a fit case it is never refused. The mode of proceeding to obtain it is now regulated by the Patents, Designs, and Trade Marks Act, 1883, as amended by the Patents, Designs, and Trade Marks Acts, 1885, 1886, and 1888, and the Patents Act, 1902. The general mode of proceeding under these statutes is as follows :- The applicant may be a British subject or a foreigner, and

persons may be joint applicants (I); and the application is made by petition containeel in, and supported by, a solemn declaration that the petitioner is the true and first inventor, and that the invention is not in use in this country by any other person, to the best of his knowledge and belief. The application, which must be left at, or sent to, the Patent Office (m), must be accompanied by either a provisional or a complete specification (n)—the provisional specification describing generally the nature of the invention, and being usually accompanied by drawings illustrative thereof; and the complete specification particularly describing and ascertaining in detail the nature of the invention, and in what manner it is to be performed or put in use, and being usually accompanied by drawings illustrative thereof, or else referring to the drawings thereof which accompanied the provisional specification (0). The complete specification, if not left with the application, must be sent not later than nine months (or, by leave, ten months) from the date of the application, otherwise the application is taken to have been abandoned (p). The application is referred, by the comptroller of patents, to an examiner ; and the examiner reports thereon (9)—first, whether the invention is fairly described ; secondly, whether the application, with the accompanying specification, is in proper form ; thirdly, whether the title sufficiently indicates the subject matter of the invention ; and (so soon as the complete specification is left) fourthly, whether the invention described in that specification agrees with that in the provisional one ; and fifthly, whether the invention claimed has been wholly or in part described in any previous specification during the preceding fifty years (99). If the report on these three or (as the case may be) five heads is in the affirmative, then the patent is said to be “accepted ”; and thereupon the comptroller gives notice of its acceptance to the applicant. After such acceptance, the inventor enjoys, during the interval between the date of the application and the date of sealing the patent, the right to use his process without prejudice to the patent thereafter to be granted, this immunity of enjoyment being known as his “provisional protection " (1). And in case a complete specification has been left with the original application, or so soon as being thereafter left it has been “ accepted,” then in addition the applicant has, during the interval between the acceptance of the complete specification and the date of sealing the patent, the like rights as if the patent had been already granted, except that he has no right of action for an infringement, unless and until the patent is in fact granted (s).

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(1) Patents Act, 1883, 8. 4; Patents Act, 1885, s. 5.

(m) Patents Act, 1883, S. 5, sub-s. (1).

(n) Ibid. s. 5, sub-s. (2).

(0) Patents Act, 1886, s. 2.

(p) Ibid. s. 8; Patents Act, 1885, s. 3.

(9) Patents Act, 1883, s. 6.

So soon as the complete specification has been accepted, the comptroller advertises its acceptance (1) and after such advertisement, the specification is open to inspection at the Patent Office. Within two months after the advertisement, any person may give notice at the Patent Office of opposition to the grant of the patent (u), on any or either of the following grounds : namely, (1) that the applicant has obtained the invention from him, or from a person of whom he is the legal representative ; (2) that

(99) Patents Act, 1902, s. 1. (r) Patents Act, 1883, s. 14. (*) Ibid. s. 15; Ex parte Bates and Redgate (1869), L. R. 4 Ch.

App. 578 ; Ex parte Henry (1873),
L. R. 8 Ch. App. 167.

(1) Patents Act, 1883, s. 10.
(1) Ibid. s. 11.

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