6452. PATENTS, Granting of.—
Considering
the exclusive right to invention as given
not of natural right, but for the benefit of
society, I know well the difficulty of drawing
a line between the things which are worth to
the public the embarrassment of an exclusive
patent, and those which are not. As a member
of the patent board for several years, while
the law authorized a board to grant or refuse
patents, I saw with what slow progress a system
of general rules could be matured. Some,
however, were established by that board. One
of these was, that a machine of which we were
possessed, might be applied to every man to any
use of which it is susceptible, and that this right
ought not to be taken from him and given to a
monopolist, because the first perhaps had occasion
to apply it. Thus a screw for crushing
plaster might be employed for crushing corncobs.
And a chain-pump for raising water
might be used for raising wheat; this being
merely a change of application. Another rule
was that a change of material should not give
title to a patent. * * * A third was that a
mere change of form should give no right to a
patent. * * * But there were still abundance
of cases which could not be brought under rule,
until they should have presented themselves
under all their aspects; and these investigations
occupying more time of the members of
the board than they could spare from higher
duties, the whole was turned over to the judiciary,
to be matured into a system, under
which every one might know when his actions
were safe and lawful. Instead of refusing a
patent in the first instance, as the board was
authorized to do, the patent now issues of
course, subject to be declared void on such
principles as should be established by the courts
of law. This business, however, is but little
analogous to their course of reading, since
we might in vain turn over all the lubberly
volumes of the law to find a single ray which
would lighten the path of the mechanic or the
mathematician. It is more within the information
of a board of academical professors, and
a previous refusal of patent would better guard
our citizens against harassment by lawsuits.
But England had given it to her judges, and
the usual predominancy of her examples carried
it to ours.—
To Isaac McPherson. Washington ed. vi, 181.
(M.
1813)
