§ 190. “Patents of Inventions.”
A patent is a legal privilege granted by the Crown to an individual, and conveying to him the sole right to make, use, or dispose of some invention of a new and useful mechanism, appliance, or process in science, art, or industry for a specified period of time. In England modern patent legislation began with the statute of 21 Jas. 1. c. 3. This Act declared void all previously enjoyed monopolies, grants, letters-patent, and licences for the sole buying, selling, or making of goods except in certain cases, and provided for the protection for a term of fourteen years of letters-patent and grants of privileges thereafter to be made to the true and first inventor of processes for the working or making of new manufactures within the realm, which others at the time of making such letters-patent and grants should not be using. Thus the elements of novelty and previous non-user by the public became the principal conditions precedent to the acquisition of such rights and privileges. The law was amended by Acts passed in the reigns of Queen Anne and William IV. By the Acts of 5 and 6 Will. IV. c. 83, 2 and 3
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Vic. c. 67, 15 and 16 Vic. c 83, amended and re-enacted by the Patent Act, 1883 (46 and 47 Vic. c. 57), the main provisions of the present patent laws were established. These laws defined the procedure to be complied with in order to acquire a patent, such as the formal application, the description and specification of the invention, the provisional protection, the investigation of the merits and originality of the invention, the decision of disputes, the duration of the patent, the protection and privileges of the patentee, and the penalties for the infringement of the right.
A patent granted by the Crown in England extends over the United Kingdom and the Isle of Man, and certain rights are, under the International Convention, obtainable in foreign countries. Under the Patents Act, 1883 (46 and 47 Vic. c. 57), sec. 103, as amended by sec. 6 of the Act of 1885 (48 and 49 Vic. c. 63), the Queen may make arrangements with foreign Governments for the mutual protection of inventions of their respective subjects and citizens. Any person who has applied, within any State with which arrangements have been made thereunder, for protection for any invention, will be entitled to a patent for his invention in the United Kingdom, provided he makes application within seven months after his foreign application. Such an applicant is not prejudiced in his right to a patent by publication within the realm during the seven months period. Sec. 104 makes similar provision for inventors who have first applied for protection in any British possession. A list of countries and colonies with which arrangements have been made is set out in Edmunds on Patents, 2nd ed. at p. 536; the text of the International Convention will be found in the same book. (See Ency. Laws of Eng. ix. p. 522.)
A patent granted by the Government of a British colony does not confer any legal right enforceable in other colonies. An inventor must take out a patent in each colony in which he desires to obtain protection against infringement. As soon, however, as the Parliament of the Commonwealth passes a general law relating to patents, a patent granted by its Government will be operative throughout the Commonwealth. One patent will then secure protection where several were previously required.
ENGLISH PATENT CASES.—The Act 21 Jac. 1, c. 3, did not create but controlled the power of the Crown in granting to the first inventors the privilege of the sole working and making of new manufactures. (Caldwell v. Van Vlissengen, 21 L.J. Ch. 97. Dig. Eng. Case Law, vol. x. p. 687.)
An invention must be both new and useful, and not confined to the knowledge of the party making it, to be the subject of a patent. (Hill v. Thompson, 2 Moore, 424. Dig. Eng. Ca. Law, vol. x. p. 689.)
It is not every useful discovery that can be made the subject of a patent, but the words “new manufacture” in 21 Jac. 1, c. 3, will comprehend not only a production, but the means of producing it. (Ralston v. Smith, 20 C.B. [N.S.] 28; 11 H.L. Cas. 223. Id.)
The discovery of a more skilful and efficient mode of working a process already known and in use is not the proper subject of a patent. (Patterson v. Gaslight Coke Co. 2 Ch. D. 812. Id.)
The discoverer of a new principle or new idea as regards any art or manufacture, who shows a mode of carrying it into practice, as by a machine, may patent the combination of principle and mode, although the idea or the machine would not alone be the proper subject of a patent. (Otto v. Linford, 46 L.T. 35 C.A. Dig. Eng. Ca. Law, vol. x. p. 690.)
AMERICAN PATENT CASES.—Whether Congress can by Act decide that a particular individual is the author or inventor of a certain writing or invention, so as to preclude judicial inquiry into such fact, quaere. (Evans v. Eaton, 3 Wheat. 454.) It is for Congress to say when, for what length of time, and under what circumstances a patent hall be granted. It has power to pass an Act which operates retrospectively to give a patent for an invention already in use. (Blanchard v. Sprague, 2 Story, 164; Baker, Annot. Const. p. 48.)
CANADIAN PATENT CASES.—In Tennant v. Union Bank of Canada, 1894, App. Cas. 31, it was held that laws made by the Dominion Parliament on subjects, such as banking and patents, are paramount, and it would be practically impossible for the Dominion Parliament to legislate upon either of these subjects without affecting the property and
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the civil rights of individuals in the provinces. In Smith v. Goldie, 9 S.C.R. (Can.) 46, it was held that a patent for a combination of known inventions, the combination being novel and useful, was valid. It was there also held that to be entitled to a patent in Canada, the patentee must be the first inventor in Canada or elsewhere. In the case of Re Bell Telephone Co. (7 Ont. 605) the question was raised whether section 28 of the Dominion Patent Act, 35 Vic. c. 26, was ultra vires, as creating a court of justice of civil jurisdiction, infringing sub-secs. 13 and 14, sec. 92, B.N.A. Act. (Wheeler, C.C. pp. 89–91.)