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Patent in United Kingdom

Concept of Patent

The following is an old definition of Patent [1], a term which has several meanings:1 (1) Open to inspection; not closed by sealing. Grants by the king of lands, honors, liberties, franchises, etc., are contained in charters or letters-patent, that is, open letters: not sealed up, but exposed to view and addressed to his subjects at large. Other letters of the king, directed to particular persons, and for special purposes, not being proper for public inspection, are closed up and sealed on the outside: writs close, and recorded in the close-rolls, as others are in the patent-rolls. (2) Evident; apparent: as, a patent ambiguity, see, in this resource, the term 2. By elision, equivalent to “letters- patent ” (noted above, and, more at length, below) for a grant of public land or for a discovery, made by government, and constituting a “patent right.” A “patent” is a grant by the crown or government. Patentable, and non-patentable express, respectively, that letters-patent will or will not be issued for the thing Ln question – a discovery, or land. Patentee. He to whom letters-patent have been granted or issued, in particular for a discovery. Compare Grantee; Licensee. Patent for land. The instrument by which the government. State or national, passes its title to land; the government conveyance. Of itself is evident of title because the government, being the original source of title, is presumed to have retained title until some other disposition is shown. It is the highest evidence of title, and conclusive as against the government and all persons claiming under junior patents or titles, until set aside or annulled by some judicial tribunal. . A bill in chancery is the most convenient remedy to annul a patent; which may be done for fraud in the patentee, for mistake or want of authority in the officer, or because of a higher equity in another claimant. When a patent has been regularly signed, sealed, countersigned, and recorded, the patentee has a perfect right to its possession. His title is title by record; delivery of the instrument is not essential to pass the title: that ministerial duty can be enforced by mandamus. A patent, lawfully issued, cannot be collaterally impeached in a court of law. . . A patent from the United States is the conveyance by which the nation passes its title to portions of the public domain. That the provisions of the law may be properly carried out, a land department has been created to supervise the proceedings taken to obtain a title. The decisions of the officers of that department are conclusive except in direct proceedings for the correction or annulment of their acts. Lapsed patent. A patent which has become inoperative through neglect in the patentee. Relates to the date of the original patent, and makes void all mesne conveyances. See more at length Land, Public; Pre-emption; Relation, 1. Patent for a discovery or an invention. A public franchise granted to the inventor of a new and useful improvement to secure to him, for a limited term mentioned therein, the exclusive right to make, use, and vend the article or object, as tending to promote the progress of science and the useful arts, and as matter of compensation for the labor and expense in making and reducing the invention to practice for the public benefits. The grant of a patent is not the exercise of any prerogative to confer upon a subject the exclusive property in that which would otherwise be of common right. It more nearly resembles a contract which Congress may enter into to secure the inventor, for a limited time, the exclusive enjoyment of the practice of his invention, for disclosing his secret and relinquishing his invention to the public at the end of the term. ” The Congress shall have Power . . To promote the Progress of Science and useful Arts, by securing for limited Times to . . Inventors the exclusive Right to their . . Discoveries.” The most important laws passed in pursuance of this power are the acts of July 4, 1836, and July 8, 1870, each of which revised preceding legislation. The act of 1870, changed in its expressions and arrangement, and otherwise amended, was re-enacted in the Revised Statutes as sections 4883-4936. The provisions of the acts may be thus summed up: Whoever discovers that a certain useful result will be produced, in any art, machine, manufacture, or com- position of matter, by use of certain means, is entitled to a patent for it: provided he specifies the means in a manner so full and exact that any one skilled in the gcience to which it appertains can, by using the means specified, without any addition to or subtraction from them, produce precisely the result described. If this cannot be done by the means described, the patent is void. If it can be done, then the patent confers on the patentee the exclusive right to use those means to produce the result or effect he specifies, and nothing more. It malses no difference whether the effect is produced by chemical agency or combination, or by the application of discoveries or principles in natural philosophy known or unknown before his invention, or by machinery acting together upon mechanical principles. In any case, he must describe the manner and process as above mentioned, and the end it accomplishes. And any one may lawfully accomplish the same end, without infringing the patent, if he uses means substantially different from those described. That clear and exact summary of the law affords a key to almost every case that can arise. Everything turns upon the force of the word ” means ” as there used. The means need not be a machine, or an apparatus: it may be a process. A patjent-right confers a temporary monopoly (q. v ), hut the benefit to the public is the primary object. This benefit is the equivalent for the labor of the patentee. Hence, the inventor who withholds his inven- tion from the public, to be used solely by himself; will not be aided. And the inventor who suffers his invention to be in public use or on sale two years before applying for a patent forfeits his right. It is not necessary that more than one of the articles be publicly used. If the inventor, having made his device, gives or sells it to another, to be used by the donee or vendee without limitation or restriction or injunction of secrecy, and it is so used, such use is “public,” even though the knowledge of ttie use is confined to that one person. But a use necessarily open to public view, if made solely to test the qualities of the invention, and for experiment, is not a public use. A patentee cannot be permitted to use for profit a machine which embodies a perfected invention for a period of two years or more, and then obtain a valid patent for the old machine by means of the addition of some new improvement intended, perhaps, to benefit the inyentor, rather than the machine. The act of March 3, 1839, § 7, did not require that, to invalidate a patent, the public use or sale for the two years, should have been with the consent of the patentee.’ A patentable invention is a mental result. It must be new and of practical utility. Then, everything within the domain of the conception belongs to him who conceived it. The machine, process, or product is but its material refiex and embodiment. Crude and imperfect experiments are not sufficient to confer a right to a patent. The applicant must have proceeded so far as to have reduced his idea to practice, and embodied it in some distinct form. He is the first inventor, and entitled to a patent, who first perfected and adapted the same to use. Such a thing, for example, as a bundle, of kindling wood and afire lighter is not patentable. It is not the object of the laws to grant a monopoly for every trifiing device which would naturally and spontaneously occur to any skilled mechanic or operator, in the ordinary progress of manufactures. The design of the laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and marks a step in advance in the useful arts. An earlier published description, to invalidate a patent, must exhibit the later intervention in such a full and intelligible manner as to enable persons skilled in the particular art to comprehend it without assistance from the patent, or to make it, or to repeat the process. The patentee must be the first inventor in this country. Foreign use will not affect his right, and a foreign patent will only limit his term to seventeen years from the date or publication of the foreign patent. A patent is to receive a liberal construction, so as to uphold, and not destroy, the right of the inventor. ^8 The circuit courts, and district courts with circuit court powers, have original jurisdiction in suits respecting patents.^9 The Federal courts have exclusive cognizance of such suits only as directly involve the validity or the infringement of a patent.0 A patentee, for an infringement, may seek remedy at law or in equity.1 In the absence of a specific statute, the United States cannot maintain a bill in equity to cancel a patent. Letters-patent are prima facie evidence that the patentee is the first and original inventor. A bill in equity for a naked account of profits and damages against an infringer cannot be sustained. Such relief, ordinarily, is incidental to some other equity, the right to enforce which secures to the patentee his standing in court. The most general ground for equitable interposition is, to insure to the patentee the enjoyment of his specific right by injunction against a continuance of the infringement; but grounds of equitable relief may arise, other than by way of injunction, as where the title of the complainant is equitable merely, or equitable interposition is necessary on account of the impediments which prevent a resort to remedies purely legal; and such an equity may arise out of, and inhere in, the nature of the account itself, springing from special and peculiar circumstances which disable the patentee from a recovery at law altogether, or render his remedy in a legal tribunal difficult, inadequate, and incomplete; and as such cases cannot be defined more exactly, each must rest upon its own particular circumstances, as furnishing a clear and satisfactory ground of exception from the general rule. A person who marks upon any unpatented article the word “patented “or its equivalent, for the purpose of deceiving the public, is liable, for each offense, to a penalty of not less than one hundred dollars, with costs. The plaintiff mustallege an mtention to affix a stamp or plate indicating a present subsisting patent. It is not an offense to give the date of a patent which has expired. State laws making void notes given in consideration of a patent-right unless the words ” given for a patents right” are prominently written upon the face of the note, have generally been held to be unconstitutional, on the ground that property in inventions exists by virtue of laws of Congress, and no State may annex conditions to the grant or otherwise interfere with its unrestricted enjoyment. A legislature may enact a statute which has the effect to pass title to letters-patent to the assignee of an insolvent. Patent office. The bureau or office from which letters-patent issue, in which assignments thereof are noted, and other records appertaining to patents made and preserved. The responsible head is the commissioner of patenfg, whose office was created by the act of July 4, 1836, In theory, he is to issue no patent which may not be sustained by the courts, as both novel and useful. Under that act he was allowed a clerk to assist him in making the necessary examinations under applications. Since the act of 1870, there have been, besides the commissioner and assistant commissioner, three examiners in chief, a chief clerk, an examiner in charge of interferences, twenty-two principal examiners, twenty-two first and twenty-two second assistant examiners. All patents shall be issued in the name of the United States of America, under the seal of the patent office, and shall be signed by the secretary of the interior or under his direction by one of the assistant secretaries of the interior, and countersigned by the commissioner of patents, and they shall be recorded, together with the specifications, in the patent office, in books to be kept for that purpose. The secretary of the interior has no power to revise the action of the commissioner in awarding priority of invention to an applicant for a patent, such action being quasi-judicial. After determining that a patent shall issue, the commissioner acts ministerially in preparing the patent for the signature of the secretary, and in countersigning it. A mandamus will lie to compel the performance of these duties. As against the patentee himself, an assignment need not be recorded, to retain validity; but as respects a subsequent purchaser without notice and for a valuable consideration, a prior assignment must be recorded within three montbs. And as against a third person, a suit may be maintained by an assignee provided he records his assignment before the trial or hearing. See Abandon, 1; Art, 1; Caveat; Combination, 1; Composition; Damages; Dedication; Delivery, 1; Design, 1; Disclaimer, 3; Discovery; Equivalent; Extension; Infringement; Interference; Invention; Issue, 1, Re-issue; Machine; Manufacture; Model; New, 1; Novelty; Principle; Process, 3; Profit; Residuum; Surrender; Telephone Case; Trade-mark; Use, 1, Useful.

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Notes and References

  1. Meaning of Patent provided by the Anderson Dictionary of Law (1889)

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Further Reading

Concept of Patent in IP Law

Lambert defined patent as follows: An IPR, a  monopoly of a new invention, The right to prevent others from making, importing, disposing, using or keeping a patented product, using a patented process or making, importing or keeping products made by a patented process.

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MacCallum, 'Patent' (lawi.org.uk 2020) <https://lawi.org.uk/patent/> accesed 2021 January 17

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Schema Summary

  • Article Name: Patent
  • Author: MacCallum
  • Description: Concept of Patent The following is an old definition of Patent [1], a term which has several meanings:1 (1) Open to [...]

This entry was last updated: January 24, 2020

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