the Statute of Monopolies. In the first place, he must be the true and first inventor of a new manufacture; the new manufacture must not be contrary to law, nor must it be mischievous to the State, by raising the prices of commodities at home; it must not be hurtful to trade, nor generally inconvenient. The Act of 1883 has adopted this definition of an invention, and anything that does not conform with all these requisites is not entitled to be called an invention. The host of important decided cases as to the construction of the 6th section of the Statute of Monopolies, and the enormous expense, and labour and learning, which have been devoted to obtaining these decisions, no doubt induced the legislature to adopt a definition which had in some respects obtained a correct judicial meaning; but it is doubtful whether it was wise to re-enact it in a form which had, we may say, centuries ago, already become to some extent obsolete. The protection of trade by means of guilds, and by all those various schemes which were elaborated in the middle ages, has been found to be fallacious. Industries in this country are no longer protected by the artificial process of law, and therefore it is difficult to understand the correct meaning which would be given to the words in the 6th section of the Statute of Monopolies, which refer to an invention having a tendency to raising the prices of commodities at home, or to hamper trade, or to be generally inconvenient, terms exceedingly vague in themselves, and which the Courts have not had occasion to consider for a very great number of years. These matters, and the construction which is to be placed upon the word "invention," will have to be dealt with hereafter, when we consider the cases which have been decided upon the subject. Thus we see that the same essentials must be proved by an applicant for the grant of letters patent to-day as were necessary at the date of the Statute of Monopolies; he must be the first to introduce into this realm the manufacture for which he seeks a patent, whether by enterprise in importing it from abroad, or by the exercise of his own inventive faculty. The Patents, &c., Acts, 1883-1888, deal merely with points of procedure and practice, adopting, as has been already pointed out, the definition of an invention contained in the sixth section of the Statute of Monopolies; the Act of 1883 consolidated all the provisions of previous acts on the subject, at the same time introducing some few innovations, the effect of which will be dealt with in detail in the course of the consideration of the various branches of the subject as they arise. CHAPTER II. THE PATENTEE. By sect. 46 of the Act of 1883, the word "patentee: "" is construed as meaning "the person for the time being entitled to the benefit of the patent," consequently it may mean the original grantee, his executors and administrators, or any assignee. A mortgagee is the legal owner of the patent, but if not registered in "The Register of Patents" as proprietor, he is not the person for the time being entitled to the benefit of it so as to constitute him "patentee," and it is not necessary that he should be joined as a party in an action for infringement (a), and semble this would be the case, even if he was so registered (b). An exclusive licensee has not such an interest in the patent as to enable him to maintain an action for infringement, he may, however, sue in the name of the grantor of the license (c). Lord Justice Cotton in the Court of Appeal said: "All that is contended is that an exclusive license is equivalent to a grant, and that the licensee may, without the concurrence of the patentee, or without there having been any violation of the agreement between the patentee and himself, sue the person who is infringing the rights conferred by the license. In my opinion that is wrong. That is turning that which is merely a license into something very different, namely a grant of the whole letters patent" (d). (a) Van Gelder Apsimon & Co. v. Sowerby Bridge Flour Co., L. R., 44 Ch. D. 374. (b) Ib. p. 389. (c) Heap v. Hartley, L. R., 42 Ch. D. 461; Derosne v. Fairie, 1 Web. P C. 154; Renard v. Levinstein, 2 Hem. & M. 628. (d) Heap v. Hartley, L. R., 42 Ch. D. 469; Guyot v. Thomson, 11 P. O. R. 541, 554. By sect. 4 of the same Act it is enacted: (1) Any person, whether British subject or not, may make an application for a patent. It will be observed that there is no limitation whatever preventing a person under incapacity, either by reason of infancy or otherwise, from obtaining a patent. There does not appear to have ever been a question as to whether an infant or a married woman might under the old law have become a grantee of letters patent. The new law, however, is perfectly clear, and sweeps away any doubt that might have been entertained on the subject. Before this Act it was competent for an alien to obtain a patent; Lord Cairns in the matter of Wirth's Patent (e), went even further than this: "I am quite clear that letters patent may be granted to a foreigner who is resident abroad for an invention communicated to him by another resident abroad" (ƒ). But quære if letters patent could be obtained by an alien enemy (g). In Patterson v. Gas Light and Coke Co., James, L.J., in the Court of Appeal, said: "Although it is not necessary for the determination of this suit to pronounce any final decision on this point, we deem it right to say that we think it at the least very questionable whether it can be competent for a member of an official commission or committee to take out a patent for the subject-matter of their official investigation (h). It has been thought doubtful whether a beneficed clergyman could become the grantee of letters patent, since the exercise of an invention would probably amount to trading within the meaning of 57 Geo. III. c. 99 (i). Rule 73 of the P. O. Rules, 1890: "A body corporate may be registered as proprietor by its corporate name." It could, however, only become proprietor as assignee of the letters patent, or as co-grantee with the original inventor, since (e) Wirth's Patent, L. R., 12 Ch. D. 303; 28 W. R. 329. (f) See also Chappell v. Purday, 14 M. & W. 318. (g) Bloxam v. Elsee, 1 C. & P. 558. (h) L. R., 2 Ch. D. 832. (i) Hindmarch on Patents, p. 35 Hall v. Franklin, 3. M. & W. 259. a corporation, being without a mind, lacks that which is obviously an essential to invention (k). By sect. 4 (2) it is enacted " Two or more persons may make a joint application for a patent, and a patent may be granted to them jointly." Only one of the applicants need make the declaration, a capitalist or other person or persons may join an inventor and obtain a valid joint patent (?). A grant of letters patent confers on the patentee "a right to exclude others from manufacturing in a particular way and using a particular invention " (m), it does not affect his right of manufacturing according to his invention, which he would have had if there were no letters patent at all; consequently, where a patent for an invention is granted to two or more persons in the usual form, each one may use the invention without the consent of the others, and without affording an account of his profits to his co-patentees (n), and this is the case whether they are co-grantees or co-assignees. As to rights of such co-patentees to the profits made by granting licenses, quære (o). A co-owner of letters patent is entitled to work the invention without accounting for profits, even though he may be mortgagee of the share of the other co-owner (p). By sect. 5 (1) "An application for a patent must be made in the form set forth in the schedule to this Act or in such other form as may be from time to time prescribed; and must be left at or sent by post to the Patent Office in the prescribed manner” (q). (2) "An application must contain a declaration to the effect that the applicant is in possession of an invention whereof he, or, in the case of a joint application, one or more of the applicants, claims or claim to be the true and first inventor or inventors, and (k) Hindmarch on Patents, p. 34. (7) 48 & 49 Vict. c. 63, s. 5. (m) Per Lord Chancellor in Steers v. Rogers, L. R., 1893, App. Cas. 235; 10 P. O. R. 251. (n) Steers v. Rogers, 9 P. O. R. 177; L. R., 1892, 2 Ch. 13; 10 P. O. R. 245; L. R., 1893, App. Cas. 232; Mathers v. Green, L. R., 1 Ch. 29; 35 (0) Mathers v. Green, L. R., 1 Ch. 33; 35 L. J., Ch. 3. (p) Steers v. Rogers, supra; see Chap. XII., post. (9) See Appendix, Forms A, A1, A2. |