CHAP. II. INVENTION NOT PATENTED. THE author's right to his device is perpetual and absolute, even when embodied in a drawing, &c.: a creditor has only a lien on it: (Hesse v. Stevenson, 3 Bos. & P. 565.) By the common operation of trust and confidence this possession may be extended to what is communicated to others. (Smith and Dickinson, 3 B. & P. 630), so far at least as the party could pay a penalty, and as to restraining the use by the party of what he was bound to abstain from (Youatt); and even publication of the fact of the existence of a thing amounts to an improper use (Prince Albert's case, 13 Jur. 109); but disclosure of a secret will not be restrained (Williams v. Williams, 3 Mer. 157; Canham v. Jones, 2 V. & B. 218); there being no means of ascertaining that the owner's knowledge was exclusive (see Introduction.) In Newberry v. James (2 Mer. 449) there was the additional feature that the secret had (or ought to have) been disclosed under a patent. Apart from the question of secrecy there may be a contract as to a specific invention. (Youatt v. Winyard, and Williams v. Williams, 1 Jac. & W. 394), just as a man may tie himself up from any trade in common use. The damage so sustained might be affected by an intention to patent (Smith v. Dickinson); and patent in an incomplete state (Anderson v. Warner, Pat. Jour. No. 195) is a matter definite enough for a subject of injunction. Memoranda of processes used by a workman, and by him entered in a book, belong to the employer (Makepeace v. Jackson, 4 Taunt. 770); whether he would be the "inventor" of patent law is another matter. A subject matter for a patent, or a provisional registration, is a matter for agreement the inventor undertaking to endeavour to obtain a patent; to assist in and execute the specification; and to assign the patent, with usual stipulations. His interest as to an extension is too remote to be worth providing for. Sometimes the purchaser has an option, subject to certain trials, agreeing, of course, not to use or divulge it in case of rejection. Similar agreements are made by a foreigner who is unable to solicit in person with a patent agent or other party who patents the "communication," and who would be deemed a trustee for the party entitled: (Hutchinson v. Teychenne, Chy. 1850; Pat. Jour. 196.) Much caution will of course be exercised in everything previous to the patent, even apart from dishonesty, and from direct stealing by a stranger. Parties employed about and consulted on a patent easily transfer to themselves the merit; and evidence of real authorship is difficult, while, if laid open to the public, the right is irretrievable. (See chap. 8, sect. 2, for a caution as to patents abroad.) СНАР. ІІІ. THE INVENTOR. THE right to a design is vested in the proprietor generally, like property in general; so also of the provisional right under the act of 1851; but patent right is not wholly emancipated from the state of a personal concession. The grant must be to the inventor, whatever obligations he may already have contracted in reference to the privilege to be obtained. Even in extension cases it can hardly be said that the property is deemed wholly transferred; and merit, in the thing severed from its author, is not cordially recognised. But from the earliest times that merit has been admitted which lies in an importer, who not only brings in his invention a commodity of equal value in utility, but, when travelling was rare, of equal value in exchange, for his pains and cost were as great as the home students, and the obstacles to be overcome as serious. He might be poisoned (Sir Thomas Lombe, Webs. P. C. 38) by jealous foreigners, and require as much precaution as the emissaries who brought the art of printing over for Henry the Eighth (Maugham on Copyright, 45.) The Statute of Monopolies allows inventions, new within the realm, and seeing that it did not intend expressly to alter the common law in this respect, it was reasonable to construe this to an approval of importation patents. The national policy of availing ourselves of the prolific powers of our scientific and versatile neighbours is obvious, and the number of importations in fact is considerable; and just as the personal merit of an importer dwindled by the increased intercourse with the foreigners, he, on the other hand, 66 acquired a vicarious merit as the agent of the real inventor. Such applications for a patent are styled communications from a foreigner residing abroad." It seems reasonable to say that an Englishman abroad would be equally admissible by agent, and that a foreigner being here should apply in his own name. That an alien is not disqualified seems pretty certain (Beard v. Egerton, 8 C. B. 165), and he may prosecute a scire facias (R. v. Prosser, 11 Beav. 306), but quære (Bloxam v. Elsee, 1 C. & P. 558) as to a patent in trust for an alien enemy. Patents are said to be grantable to an executor, and several cases have occurred recently of such a grant to a widow as a "commuuication from her husband." It is generally said, however, that the patentee (or one of two patentees) alone can execute the specification. : As to persons generally incompetent, there seems no substantial objection to an ecclesiastic's holding the privilege, though he ought to exercise it only by licensing others (Cartwright was a clergyman.) In Hardy's case (13 Jur. 177) the Privy Council would not give the inventor a share of profit, and therefore appointed an annual rent. It may be presumed that a minor might patent on similar terms. A patent to an inventrix, if married, would be subject to the marriage law. Mr. Hindmarsh thinks a corporation incapable; and it is certainly difficult to attribute a conception of an idea to a body without a soul. They might probably import an invention, and do often hold one, or obtain its extension. As to the positive characteristics of an inventor, the questions raised at patent trials are mostly in reality about the goodness of the invention—the true and first inventorship amounting to the goodness and novelty of the thing. If the patent had been published by another, the patentee is not the first inventor: (Minter v. Wells, 1 Webs. 132; Forsyth v. Riviere, Webs. P. C. 97.) If not published, he is the first inventor so far as the law can ascertain; it cannot know satisfactorily what progress might have been privately made, and ought not to listen to what another expected or intended to offer to the public. Mere laxity in the completion of the idea is exactly the reverse of that forcing process which patents should produce (see Introduction); and a man must not step forward only when a rival is in the field; he should make his claim, if he have one, or he allows others to waste their efforts. What discretion the law officer exercises on this point is not very clear; there would be a sort of adjustment— . sometimes a joint grant. The right at the Great Seal stage is matter of priority in coming there, and without reference even to the date of the first application for the grant, which is all the more necessary as there is nothing to prevent an unlimited delay in the completion of the patent. Of course the complete existence of the invention is inseparable from that of priority. If ingenuity appear in the result its psychological origin is not inquired into. It may be elaborated by toil and calculation, or be caught at in a lucky accident or sudden flash of thought: (Liardet v. Johnson, Bull. N. P. 76; Crane v. Price, Webs. P. C. 411.) Two distinctions exist between the point of first inventorship and that of the subject-matter-the novelty of the invention. 1stly. The party may have invented, but have since given it up to the public. Here the personal question narrows the conditions arising from the thing. 2ndly. The thing may have been new to the public, but not invented by the patentee; or in case of an imported patent by the foreigner, &c., in communication with him. Thus, it is said to be fatal (Tennant's case, Dav. P. C. 429), that some one else had "suggested the idea." Quare, however, if suggesting an idea be the birth of an invention, mere execution of instructions (Minter v. Wells) is only an auxiliary office, even when (Bloxam v. Elsee, 1 C. & P. 558) much ingenuity is employed in carrying out a plan. So of the expansion and development of the theory or principle of a machine (Mangnall v. Benecke, Newton Lond. Jour. |