Читать книгу Intellectual Property Law for Engineers, Scientists, and Entrepreneurs - Howard B. Rockman - Страница 52

The development of the U.S. patent law extends from 1787 at the Constitutional Convention, to the enactment of the Patent Act of 1836, which is the foundation for the modern patent system in use today. During this time frame, the U.S. system changed from a patent custom to an established patent system.

Prior to the Constitutional Convention of 1787, many of the American colonies and states of the Confederation preceding the U.S. Constitution had enacted legislation forbidding monopolies, except as for such new inventions that were profitable to the colony, and those grants would only be for a short time. Massachusetts had such a law in 1641, and Connecticut in 1672. By the time of the Declaration of Independence in 1776, many colonies had been issuing patents, and they continued to do so between the time of the Declaration of Independence and the Constitutional Convention in 1787. The granting of patents by individual states even continued to some degree after the adoption of the Federal Constitution in 1789 and the passage of the first patent act of 1790. However, the granting of individual state patents eventually ceased.

The members of the Constitutional Convention were aware of the activities of inventors and authors, and of the efforts to aid them in the individual state legislatures and in the Continental Congress that preceded the Constitutional Convention. James Madison and Charles Pinckney, the latter from South Carolina, each submitted proposed clauses to the Constitutional Convention in August of 1787, which stated as follows:

“The Congress shall have power … to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

The Constitutional Convention, which gave rise to the U.S. Constitution in effect today, took place in hot and humid Philadelphia from May until September 1787. Little is written on how the patent and copyright clause was placed into the Constitution. What is known is that, after discussing and debating the more important issues in the Constitution, on August 31, 1787, the delegates to the convention agreed to refer portions of the Constitution that had been postponed up to that time to a committee made up of a member from each state. Since Rhode Island had never been asked to attend the constitutional convention, and the New York delegation had left the convention in the middle to go back to their farming, this became the Committee of Eleven. On September 5, 1787, the Committee of Eleven reported out five unresolved matters pertaining to the powers to be granted to Congress, and the fifth of these became the Intellectual Property Clause of the U.S. Constitution, “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” On September 12, 1787, a committee of the convention reported a draft of the entire Constitution that left the Intellectual Property Clause intact. The final draft of the Constitution was approved on September 17, 1787, including the Intellectual Property Clause.

Apparently, the provision was uncontroversial, as there is no record of any debate on this matter. James Madison, writing in Federalist No. 43, stated that an author’s copyright has long been adjudged in Great Britain to be a right held by the author at common law. The right to useful inventions seems with equal reason to belong to inventors. Thus, this statement, by one of the leading founders of our nation, supports the right of inventors to exclusive rights in their inventions, as distinguished from prerogative writs granted at will and fiat by the government.

It should be noted that an inventor does not have an exclusive right to his invention at common law, as that statement is strictly read. In 1850, the U.S. Supreme Court, in the case of Gayler et al. v. Wilder, 51 U.S. (10 How.) 477 (1850), held that the inventor of a new and useful improvement has no exclusive right to the invention until he obtains a patent grant. This right is created by the patent, and no action can be maintained by the inventor against an infringer before the patent is issued. The Court went on to hold that this exclusive right did not exist at common law, but was created by the Act of Congress in enacting the patent statutes. Again, in 1913, the U.S. Supreme Court, in the case of Bawer & Cie. v. O’Donnell, 229 U.S. 1 (1913), stated that the right to make, use, and sell an invented article is not derived from the patent law. The patent law secures to the inventor the exclusive right to make, use, and sell the patented item, and to prevent others from exercising like privileges without the consent of the patentee. The Court stated that the patent law was passed for the purpose of encouraging useful inventions and promoting new and useful improvements by the stimulation of exclusive rights awarded to inventive genius, and was intended to secure to the public, after the lapse of the exclusive privileges granted, the full benefit of such inventions and improvements.