Page:The Green Bag (1889–1914), Volume 19.pdf/440

 THE PROTECTION OF UNUSED PATENTS Monopolies in England (21 Ja. i, c. 3. A. D. 1623-4). The excepting clauses of the Statute of Monopolies, found in sections V and VI of that statute, constitute the foundations upon which the patent laws of England rest. It is also true that, historically at least, the Statute of Monopolies has a relation to the basis of our patent system in the United States, i.e. to clause 8 of sec. 8 of Article 1 of the Constitution of the United States. In the celebrated case of Pennock v. Dialogue, 2 Peters (U. S.) 7, Mr. Justice Story discusses this Statute of Monopolies in relation to our patent system and says: "The words of our statute are not identi cal with those of the Statute of James, but it can scarcely admit of doubt that they must have been within the contemplation of those by whom it was framed, as well as the construction which had been put upon them by Lord Coke." To the same effect, see United States v. E. C. Knight Co., 156 U. S. 9-10. In But cher's Union Co., v. Cresent City Co., 111 U. S. 746, Mr. Justice Bradley said: "As a mere declaration of the common and statute law of England, the case of monopolies (11 Rep., 84 b) and the Act of 21 Ja. i., c. 3 (Statute of Monopolies) would have but little influence on the question before us, which concerns the power of the legislature of a State to create a monopoly. But those public transactions have a much greater weight than as mere declarations and enactments of municipal law. They form one of the constitutional land marks of British liberty, like the Petition of Right, the Habeas Corpus Act, and other great constitutional acts of Parliament. They established and declared one of the inalien able rights of freemen which our ancestors brought with them to this country." No one can doubt that the opinions of Jeremy Bentham, the great apostle of utility, who gave the word "utilitarian" to our language, whose writings were much in vogue when the Constitution of the United

409

States was conceived, drafted, and ordained, did have an influence upon the minds of those great statesmen to whom we are last ingly indebted for our great Federal Con stitution. Writing as an authority on po litical economy, on the subject of patents for inventions, Bentham says: "A patent of invention, is an instance of a reward peculiarly adapted to the nature of the service, and adapts itself with the utmost nicety to these rules of proportion to which it is most difficult for rewards artifically instituted by the legislature to con form. If confined, as it ought to be, to the precise point in which the originality of the invention consists, it is conferred with the least possible waste or expense. It causes a service to be rendered which, without it, a man would not have a motive for render ing, and that only by forbidding others from doing that which, were it not for that ser vice, it would not have been possible for them to have done. Even with regard to such inventions, for such there will be when others besides him who possesses the reward have scent of the invention, it is still of use by stimulating all parties and setting them to strive which shall first bring the discovery to bear. With all this it unites every prop erty that can be wished for in a reward. It is variable, equable, commensurable, frugal, promotive of perseverance, subser vient of compensation, popular, and rea sonable." The books are replete with decisions of the courts recognizing the wisdom and jus tice of a patent system which rewards the patentee for bringing "the discovery to bear," as Bentham puts it. In Magic Ruffle Co. v. Douglas, 2 Fisher's Patent Cases, 333, Judge Shipman shows the justice and equity back of our patent laws in these words: "The public, who thus, through the law, secure to the inventor the exclusive prop erty in his invention for a limited period, receive in return either new, more valuable or cheaper production during the life of the