In one trial, (ex parte Hoops, Vesey's Rep. vol. vi. p. 599.) the Lord Chancellor Eldon is reported to have said, that the evil of offering an undue advantage to foreigners was incurable, inasmuch as " a man has nothing more to do than to pirate your invention, in a single instance, and he will force you to bring an action, and then the specifi cation must be produced." The Lord Chancellor was right as the law exists, but it is the very injustice com plained of, that the specification must be produced at the command of every pirate.
We shall shortly state the modifications of the pre sent patent law, which appear to us both just and expe dient.
1. A permanent board, or judicatory of persons com petent to judge of the mechanical, chemical, and legal merits of inventions, ought to be established, and be sworn to fidelity and secrecy. The members of that board should be men of eminence in practical science, assisted by persons versed in the law. Their appointment should be by no lower authority than the sovereign's. To them alone should be committed the power of certifying new inventions to be worthy of patents; of judging of the com parative merits and priority of rival inventions; and of declaring whether or not infringement, when complained of by patentees, has been committed. From their judg ment on these points, there ought to be no appeal either to courts of law or equity; but it ought to have the effect of a verdict, and be pleadable in all questions on patent rights in these courts.
It would necessarily come within the province of this board, to watch over and protect patent rights, from new patents for the same things; and not only to decide be tween the old and new applicant, but•to give notice to the patentee. whenever any new application is made which is likely to inter fere with his. With them, therefore, caveats ought to be lodged, and not with the law officers of the crown.
2. On the preceding supposition, a caveat could only be required to be lodged in one stage of a patentee's pro gress, namely, during his experiments, and downwards to the time that his patent is sealed. After that form is passed, a caveat, which at present requires annual re newal, cannot be required at all, as the patentee will be entitled, as a matter of course, to receive notice of all in terfering applications. Information, or, as it is called, notice, of new applications being thus due to actual ap plicants for patents, and actual patentees, there will be an end of that fraudulent practice by which money is extort ed from timid applicants, on pretence of withdrawing op position, by persons who keep a number of caveats, on very general principles, on the books of the attorney-general, and threaten applicants with opposition. Certainly if ob
taining money on false pretences merits the punishment of transportation, this infamous practice does so.
3. The preliminary or preparative caveat ought to be kept profoundly secret, while the applicant is maturing his invention. Without any assignable reason, a caveat at present is made so public, that it is scrupulously avoid ed by inventors, as the surest way to raise opposition, and defeat its own end.
4. The applicant having matured his invention, and prepared his specification, should submit the whole, at one and the same time, to the board of inspectors or commis sioners. Their first duty, after examination, should be instant notice to all patentees with whom it appears to in terfere. If it shall not interfere, or on trial by the board be found to be distinct from the subject of any patent al ready granted,.the next duty of the commissioners should be the most open publication of its title, which must be so ample and comprehen,ive as unequivocally to designate the invention, with an intimation to all the lieges who claim the invention, to come forward and show their grounds of preference, on or before a named day. If any competitors appear, they must prove public use previous to the applicant's preparative caveat, to which it is fair that his right shall draw back, and, because of his appli cation for a patent, be preferable to even prior invention kept secret till brought out by the board's proclamation. Of course, prior public use, while it prevents the appli cant's patent, renders the invention incapable of being the object of patent right to any one.
5. The time granted being expired, and no opposition having occurred, or having occurred and been defeated, the board should be authorized, on being farther satisfied with the specification as in all respects a full and clear dis closure, and conformable to law, to grant the applicant a certificate, which be will present with his petition to the king, upon which, if it shall please his majesty, he will warrant the passing of the patent in the usual form ; the affixing the great seal being the last step, after which the patent shall be absolute, and the specification unquestion able during the whole term of the right. It follows that process of scire facial to set aside a patent will then no longer be competent.