Definition of LETTERS PATENT in respect of an invention may be defined to be letters patent. an instrument in writing or print issued by or on behalf of the Crown to the inventor, by virtue of which he and his assigns, and persons authorized by him and them respectively, are entitled during a fixed term of years to the exclusive right or privilege of using and exercising the invention, subject to the conditions prescribed therein (a). This right or privilege is an incorporeal chattel, which by the terms of the grant is impressed with all the character of personal estate by being limited to the grantee, his executors, administrators, and assigns (b). Definition of "patent." Who is an inventor. The term includes "first importer." Until the beginning of the year 1884, when the Patents, Designs, and Trade Marks Act, 1883 (c), first came into operation, letters patent were sealed with the Great Seal of the United Kingdom. By sect. 12 of that act, letters patent are to be sealed with the seal of the Patent Office, and when so sealed shall have the same effect as if sealed with the Great Seal. The term "patent" is a convenient and popular expression, meaning the letters patent, and also, or, alternatively, according to the nature of the case, the right or privilege conferred by the instrument. The term will be used in the like sense herein. In the new act (d) the word "patent" is defined to mean "letters patent for an invention," but has, no doubt, the extensive meaning as above. The term "inventor," as used herein, is to be understood to mean any person who, in the language of the Statute of Monopolies (21 Jac. I. c. 3 (e)), is "the true and first inventor of any new manufacture within this realm." This description was decided, in Edgeberry v. Stevens (f), to include "a first importer" from (a) The term "letters patent" is from the Latin "litteræ patentes," or "open letters." The letters are addressed to the public at large, and therefore there is supposed to be no necessity to close or seal them up. Other letters of the Sovereign, which are closed up and sealed outside, are called "writs close" (litteræ clausæ). See 2 Bl. Com. 349 (Kerr); Agnew, 1. For the present form of letters patent, see Form I, post, p. 48. Letters patent are also issued which do not relate to inventions-e.g., such as confer titles of honour, or appoint to public offices. (b) Hindmarch, 233. (c) 46 & 47 Vict. c. 57. This is in general referred to herein as "the new act or "the Act of 1883," and is set out in the Appendix, pp. 305-330, and is followed by the two Amendment Acts of 1885 and 1886. (d) Sect. 36. (e) See this act in Appendix, post, p. 303. (f) 1 Webs. 35. abroad, i. e., one who obtained his information from some person (the true inventor) abroad, and was the first to introduce the invention into this country. If the communication was not made in confidence, the importer would have been entitled to hold the patent for his own benefit (g), or, if otherwise, he would become a trustee for the inventor. The decision in Edgeberry v. Stevens has been followed or recognized in many other cases (h). The new act apparently makes no alteration in the position of such an importer (i). The Statute The Statute of Monopolies (21 Jac. I. c. 3), which is still in force in certain sections (), declares monopolies in general to be void (k), but excepts letters patent for the term of fourteen years or under, granted or to be granted to the first and true inventor in the case of new manufactures within the realm (1). This statute did not introduce a new law, but is simply declaratory of the common law, and simply exempts patents which are good at common law from the penalty which the statute imposes upon such patents as were then prohibited (m). The statute, in its unrepealed sections, is the only statute in force in relation to patents, except the new Act of 1883 and the Amendment Acts of 1885 and 1886. The list of acts (hereinafter called "the old acts") which were in force immediately before the 1st day of January, 1884, and are repealed by the new act, are to be found in the schedule to the latter (n). The Patent Law Amendment Act, 1852 (hereinafter 15 & 16 Vict. called "the Act of 1852"), which has been wholly repealed by the new act, subject to the savings under sects. 45 and 113 of the latter act, gives the late practice for obtaining patents, which it is now proposed to notice shortly in some respects. c. 83. An application under the Act of 1852 for the grant of letters Former mode (g) Steadman v. Marsh, 2 Jur. N. S. 391. (h) See Nickels v. Ross, 8 C. B. 679; Plimpton v. Malcolmson, L. R. 3 Ch. D. 555 (Jessel, M.R.); and Marsden v. Saville Street, &c. Co., L. R. 3 Ex. D. 203 (Jessel, M.R.) and many other cases. (i) See p. 10, post. (j) See Appendix, p. 303, post. (k) Sects. 1 and 3. (7) Sects. 5 and 6. (m) Agnew, 2, referring to 3 Co. Inst. c. 85, pp. 181-184. (n) Appendix, p. 330, post. See, however, sect. 45 of the new act as to provisions relating to patents existing at the commencement of the latter, and sect. 113 thereof as to the saving, in certain respects, of the past operation of the repealed acts. of application for a patent. Provisional specification. Provisional protection. patent was by petition to the Crown, stating that the petitioner was in possession of the invention, which he believed would be of great public utility, and that he was the true and first inventor thereof, and that the same was not in use by any other person or persons to the best of his knowledge and belief (o). The petition was supported by a declaration verifying the statements, and also by an instrument in writing called a provisional specification signed by or on behalf of the petitioner. The provisional specification contained simply a description of the nature of the invention (p), without any details as to the manner in which it was worked (7), as the only object of such specification was to identify the invention with a view to obtaining the letters patent (r). As soon as the law officer to whom the provisional specification had been referred had certified his allowance of its sufficiency, and the certificate had been filed, the petitioner became entitled for six months as from the date of his application to use and publish the invention without prejudice to the grant of the patent. The privilege thus obtained was called "provisional protection " (s), as the petitioner was thereby protected from the consequences of publishing the invention, which would have the effect of depriving it of novelty before the patent was granted (t). No right of priority, however, was in this way gained over any other applicant for a similar invention, who had left at the Patent Office another provisional specification in respect of it (u). The privilege also did not enable the petitioner to take proceedings against any persons for acts of infringement committed before he obtained fuller patent rights, as next mentioned (v). (0) The form of this petition was given in the schedule to the act. Where the petitioner was the importer only, the fact had to appear in the petition and proceedings, or otherwise the patent became void (Milligan v. Marsh, 2 Jur. N. S. 1083). (p) Sect. 6. The new act has made no alteration as to the nature of a provisional specification. (9) Re Newall and Elliot, 4 C. B. N. S. 269; Penn v. Bibby, L. R. 2 Ch. 127. (r) Re Newall and Elliot, supra (per Pollock, C.B.). (8) See sect. 8. (t) Such prior publication might otherwise have been deemed a dedication to the public. See Hindmarch, 33. (u) Ex parte Bates and Redgate, L. R. 4 Ch. 577; Ex parte Bailey, L. R. 8 Ch. 60; Ex parte Henry, ibid. 169. (v) Sect. 24. filing com Instead of obtaining protection by means of a provisional speci- Fuller patent rights obfication, the petitioner could have obtained fuller patent rights for tained by the same period of six months by filing a complete specification plete specifiwith his petition and declaration. A complete specification pur- cation. ported to be such as particularly described and ascertained the nature of the invention, and in what manner it was to be performed. It was under the hand and seal of the petitioner, and was verified by the declaration. No investigation of the merits of this specification beyond what was required in the case of a provisional specification took place, and as soon as a certificate of the proceedings had been given to the petitioner, he obtained his protection for the period of six months from the date of his application. Such protection was more extensive than the provisional protection, as the petitioner acquired the like powers, rights and privileges as might have been conferred on him by letters patent duly sealed as of the date of application, and without prejudice to the grant (x), and was enabled after the sealing of the patent to take proceedings for infringements committed in the meantime (y). After all other necessary preliminaries had taken place, such as the giving of notice to the commissioners of the intention to proceed with the application, and the advertising by them of such intention, so as to enable any persons to oppose the grant, and subject to such opposition (if any), a warrant was issued by the law officer for the sealing of the patent (≈); which, in general, was only issued within the time of protection, unless it was required in lieu of any other destroyed or lost, or unless the sealing had been delayed by reason of opposition (a). Warrant for sealing the patent. letters patent (old). A patent was sealed either before or after the complete specifica- Contents of tion was filed. In the former case it contained a condition making it void if the grantee failed to furnish a complete specification or file the same within the proper period. In the latter case, the condition was to the effect that if the (so called) complete specification was false or incomplete, the patent would be void. There were other conditions for rendering the patent void, namely, in case (1) the grant was contrary to law or prejudicial or inconvenient to the public, or (2) the invention was not a new one as to (x) Sect. 9. (y) Sect. 24, as read with sect. 9. (a) Sect. 20. the public use and exercise thereof within the kingdom, or (3) the grantee was not the true and first inventor within this realm as aforesaid (b), or (4) some previous patent had already been granted elsewhere in respect of the invention, or (5) the grantee should fail in payment of the stamp duties, or (6) the grantee should not cause the patent articles to be supplied for the service of the Crown when required. The patent was granted to the patentee, his executors, administrators, and assigns. Alteration of No provision was made under the old law for amendment of the specification by disclaimer. complete specification after the grant of the patent, except under the Amendment Act of 1835 (c). By that act (d) any person who as grantee, assignee, or otherwise, obtained a patent, might, by leave of the law officer, enter a disclaimer of any part of the specification, or of the title of the invention, or enter a memorandum of any alteration in the specification or title, but not so as to extend the patent rights. Where there was no opposition (commenced by entry of a caveat) the disclaimer or the memorandum of alteration was filed and enrolled with the specification, and was deemed part of the patent or specification (e). The object sought was to procure the omission of such words or statements as tended to vitiate the patent (f), and therefore was by way of rejection only (g), except as to the insertion of words necessary to complete the meaning (). No extension of the patent was allowed (), but clerical errors in a specification were corrected on application to the Master of the Rolls (j). What persons could enter disclaimers. Under the Act of 1835 (k) it was held that a grantee of a patent, though he had entirely parted with his interest, might enter a disclaimer (1). After that decision the Act of 7 & 8 Vict. c. 69, was passed, providing (m) that a patentee who had assigned any part of his interest might, together with the assignee, and an assignee of (b) That is, as to the public use and exercise thereof. (c) 5 & 6 Will. IV. c. 83, which is totally repealed by the new act. (e) Ibid. (f) Ralston v. Smith, 11 H. L. Cas. 243. (g) Ibid., per Lord Westbury. (h) Ibid., and also Thomas v. Welch, L. R. 1 C. P. 192. (i) Foxwell v. Bostock, 4 De G. J. & S. 298. (j) Johnson's Patent, L. R. 5 Ch. D. 503; Sharp's Patent, 1 Webs. 641. (k) Sect. 1, ubi sup. (1) Spilsbury v. Clough (1842), 2 Gale & Dav. 17; 1 Webs. 255. |