The term of fourteen years may be prolonged, but only by special act of parliament.
The vindication of the patent, or the legal remedy against infringement, comes next to be considered; and as, by the present practice, patents are granted almost, if not altogether, of course, " at the hazard" of the pa tentee, the legal vindication is virtually the establish ment of the patent; so that it may safely be said that no patentee can feel confidence in his patent, till it is for tified by the verdict of a jury, awarding damages for in fringement.
There are two ways of prosecuting for infringement.
1. A bill in chancery against thp infringer, to account for profits unlawfully obtained, accompanied by an applica tion for an injunction to prevent farther piracy. The fact of infringement; however, must be sent by the court of chancery to the common law courts to be tried by a jury.
2. An action of damages at once in the common law courts, to be tried by jury,—the more common remedy.
On the trial, the patentee must adduce evidence—slight evidence will suffice—to show the novelty and efficiency of his invention. The infringer may then show, if he can, that the patent itself is defective, in so far as it is at vari ance with the statute; or he may adopt the much more common course of proving a defective specification. A patent may be repealed absolutely by a writ of scire facias, at any one's instance, in the king's name, with the consent of the attorney-general, on various grounds of nullity: such as, that the king was deceived by false sug gestions; that the invention was not new ; that letters-pa tent were granted to more than one person for the same invention—in which last case the first patentee may have a scire facius to repeal the second ; or, that the king has granted the patent beyond the statute, either as to matter or duration. This writ issues from chancery, but it is sent to a court of law to be tried. The following mistakes in the grant do not vitiate the patent : 1. False recital in a thing not material, the king's intention being manifest ; 2. When the mistake is the king's, and not the result of false suggestion; 3. Mistakes in law or fact not part of the consideration of the grant ; 4. Grants ex certe scientia et metro motu of the king, which words occasion the grant to be taken in the most liberal and beneficial sense, ac cording to the king's intention; 5. Although the recital
should qualify the general words, yet, if the king's in tention be clearly expressed in the body of the grant, it shall prevail.
Letters-patent must be several and distinct for England, Scotland, and Ireland, and pass under the respective great seals of these kingdoms. If wished to be extended to the colonies, a trifling additional expense is incurred. In England and Ireland the procedure in letters-patent is the same—the courts, offices, and officers, being on the same model. In Scotland, these last being different, there must be a corresponding difference in the procedure. The application is necessarily remitted to the lord-advocate, who reports upon it; the great-seal is affixed by the au thority of its keeper ; and the specification is enrolled in the chancery-office, the only remnant of the Scottish lord chancellor. In Scotland, we may remark, patent rights do not vest on a statutory foundation ; they are only not prohibited by statute. The grievance of monopolies was felt in Scotland as well as in England ; but was not done away till some time later. The statute 1641, c. 63, dis charged, to use its expression, certain monopolies in fa vour of named individuals; such as monopoly of tobacco, of leather, and some others—adding, " and all other pa tents of that nature." This statute being passed during the usurpation, was, of course, included in the general act rescissory 1661, c. 15, after the restoration ; but even had it not been rescinded, it is silent on patents. The English statute of James, rendered lawful in England, not only patents for new inventions, but certain other enume rated monopolies, such as printing, saltpetre, gunpowder, great ordnance, and offices. The Scots statute made no exception, and did not even reserve patents for new in ventions. Patents for new inventions in Scotland are, nevertheless, acknowledged legal rights, but on no other ground than that they have, for more than 200 years, been in use to be granted by the king; and being expressly enacted in England, have evidently, by a tacit analogy, been held lawful in Scotland. Patents, therefore, rest on consuctudinary law in this northern part of the island. In the few actions on patents which have occurred in the Scots courts, the principles of English patent law have been invariably applied.