Des lois relatives à la propriété des inventions industrielles.

CHAP. 30: On the laws relative to the property of industrial inventions.

THE statute of the twenty-first year of the reign of James I does not declare that every discovery, whatever its object, is the property of him who made it; it only recognizes for the crown the faculty of granting to the author of a new manufactured object the exclusive privilege of engaging, for fourteen years, in the fabrication of that same object, if, moreover, no one was making use of it at the moment the letters patent were granted [^216].

The decree of the Constituent Assembly is much more general; it proclaims, as has already been seen, that every new idea whose manifestation can become useful to society belongs originally to him who conceived it; that every discovery or new invention is the property of its author, and that consequently the law must guarantee him its full and entire enjoyment.

However, however general the dispositions of this decree may be, it has been necessary to restrict them, in practice, to objects produced by the hand of man, and which can be the matter of an exchange. If one had wished to take them in the broadest sense, they would have become obstacles to all sorts of progress, without profit for anyone. In a great number of cases, they would have been unenforceable [^217].

English law, like French law, grants a privilege for the fabrication and sale of a new merchandise only to him who is its true inventor. He who fabricates a thing that has not been produced before him has no right to any privilege if its description has been given in a scientific work [^218]. It matters little, moreover, whether this work is or is not written in French, whether it was published in France or in a foreign country. In England, one does not consider as an inventor either, he who limits himself to putting into practice a process that has been verbally taught to him, unless he learned it in a foreign country [^219].

After having refused the privilege of invention to him who borrows from a scientific work the means of making a new thing, it seems little reasonable to grant it to him who does nothing but imitate a product manufactured in another nation. However, English jurisprudence, and the decree of the Constituent Assembly of 31 December 1790, give, in such a case, to the imitator, the same advantages as if he were an inventor. French law (art. 9) limits itself to restricting importation patents to foreign industries for which the inventors still have a monopoly [^220].

In both countries, in adopting this measure, they were guided less by the well-understood interest of industry than by that commercial jealousy which, for a long time, has divided nations, and which is not yet extinguished. When an industry, useful for him who engages in it as for the public, is practiced in one nation, it is not long in spreading to others. It is not necessary, to propagate it, to resort to the lure of monopolies. Communications between civilized peoples are today so easy and so rapid, all industrious men are so on the lookout for processes that can assure them some profits, that the importation of a new industry has no need to be stimulated. The monopoly that the author of the importation is made to enjoy is, for society, an evil that is compensated by no advantage.

It is possible that two people may make the same discovery, and apply for a patent of invention at about the same time. When such a case occurs, English jurisprudence gives the privilege of exploitation to that of the two who, after having obtained his patent, is the first to publish his discovery, and who thus assures its prompt enjoyment to the public.

The terms used by the statute of James I to designate the things that can be the object of a monopoly (new manufacture), indicate, not ideas or general truths, like the decree of the Constituent Assembly, but material things produced by the hand of man. These terms are less general, and especially less vague than those that are employed by French law. However, they have given rise to numerous difficulties, and they embrace so many things that they have never been completely defined. Their meaning has been, moreover, rather well determined by long usage and by the controversies to which they have given rise before the courts of justice.

A thing can be the object of a privilege only when it is made by the hand of man, when it is new, when it has not yet been put into use, when it can be the object of a sale or an exchange, when it is useful to society, or when at least its sale is not illicit.

Agricultural industry exerts an immense influence on most of the productions of nature; yet these productions are not considered as having been formed by the hand of man. Thus, although many discoveries have been made in agriculture, it does not appear that those who were their authors have considered them as their exclusive property, and that they have claimed the privilege of exploiting them. A chemist who, by the mixture of several already known things, succeeds in forming a whole hitherto unknown, can obtain the privilege of manufacturing it. A farmer who, by analogous combinations, would obtain from his lands or his herds precious products that no one had obtained before him, would not be admitted to claim the privilege of producing them alone. The very terms of English law would condemn such a pretension; those of French law would seem, on the contrary, to justify it. However, if the question arose among us, it is probable that good sense would prevail over the letter of the law. A product must therefore be manufactured by the hand of man to be the object of a monopoly for the profit of the inventor [^221].

It must, moreover, be new, that is to say, that no similar one has existed. A work in which its description was found, and where the means of obtaining it had been exposed, would suffice, as has already been seen, to strip it of all character of novelty. The circumstance that the inventor had not known this work would doubtless serve to prove his merit, but would prove nothing in favor of the novelty of the invention. It is not sufficient, in effect, to obtain the privilege of manufacturing any merchandise, to have invented it; it is necessary, moreover, that others have not previously published the discovery: there must be both invention and novelty [^222].No one must have been making use of the invented object before the grant of the privilege. The reason for this condition is easy to see: the faculty of making similar ones is acquired before the inventor's privilege. If the author of the discovery makes it known before having applied for a patent, he thereby gives the faculty of imitating it. Now, he obviously makes it known if he alienates the object he has invented, or merely if he makes use of it in such a way that others can appropriate and put into practice his ideas or his processes [^223].

The inventor, before applying for a patent of invention, may however need to subject his discovery to experiment; if he subjects it thereto, will he not be considered as having made use of it? The English jurisconsult who raised this question did not resolve it; he limited himself to observing that it had not yet come before any court of justice.

If the use that the author makes publicly of his invention deprives him of the faculty of exercising a privilege, it is for the reason that his process is thereby disclosed, and the right of imitation acquired before the grant of the monopoly. Any experiment that makes his discovery known therefore has the same effect as the public use of the invented thing: it must be followed by the same consequences.

The invented object must be able to be the matter of an exchange or a sale; if it could not be sold or exchanged, one does not see how it could fall under the dispositions of the laws made for the encouragement of the industrial arts and of commerce. The discovery of a method or a principle can give rise to a monopoly if it leads to the production of a new thing that is susceptible of being sold or exchanged; but the monopoly then exists for the new object produced, and not for the principle by means of which it is obtained. A method that would have for its sole result to facilitate the development of our physical or intellectual organs, to make them more fit, for example, to execute certain operations, could not, with all the more reason, be the object of a privilege. The products of such a method, supposing it to be effective, would be men who are more skilled, more ingenious, more adroit, or stronger, and such products can be neither sold nor exchanged. In the possession of a method or in the knowledge of certain general truths, there is nothing material, nothing that can be the object of a commerce properly so called, nothing that the hand of man has formed[^224].

One must not confuse a principle of physics, an elementary truth, either with the new things that can be produced by means of this principle, or with the new machines or instruments by means of which one takes advantage of it for the profit of industry. The scholar who first observed some of the properties of fire and water, the force of steam, for example, could not have obtained the exclusive privilege of making use of this force, whatever the merit of his discovery might have been. The mechanic who invented a machine fit to take advantage of it and to regulate its action could, on the contrary, obtain the privilege of manufacturing, employing, or selling machines of this kind [^225]. The force of steam is not, like the machine it sets in motion, the product of human industry; it can no more be an object of commerce than electricity, gravitation, or the elasticity of the air [^226].

English jurisconsults require, moreover, for a discovery to give rise to a privilege, that the invented thing have, in itself, a certain importance, and that it be useful to the public. One has some difficulty conceiving how a thing that would be of no utility to anyone could be an object of commerce. One no more easily understands why the producer of a thing devoid of utility would be keen to manufacture it exclusively, or for what reason such a privilege would be disputed with him. However, the question has sometimes arisen, and it has been decided that a thing which, in itself, was without value or without utility, could not give rise to a monopoly for the profit of the inventor. The reason for this is that if one were to authorize monopolies for discoveries that have no real importance, one would encumber industry and commerce with hindrances, without any profit for society.

It could also happen that by subjecting an object whose trade is free to an insignificant modification, an individual might succeed, by means of a patent of invention, in deceiving the public, whom he would persuade that a merchandise for which a patent of invention has been obtained is better than that which everyone is permitted to manufacture and sell [^227].

To require that a thing be useful is to require, with all the more reason, that its production and trade be licit. An object whose sale would be contrary to the laws or to good morals could no more be the matter of a monopoly than of a free trade. He who had obtained a patent of invention by surprise for the manufacture of such an object would obtain no protection from justice for the exploitation of his monopoly.

Provided that the thing produced is really new, it matters little whether it was obtained by separating elements that nature had united, or by combining together things that existed separately. The scholar who discovered the art of extracting sugar from a root could have claimed the privilege of exploiting this branch of industry for a certain time, like him who, by the mixture of certain drugs, succeeded in composing that black liquor which serves us to fix our ideas on paper. It likewise matters little whether the thing produced is destined to be immediately consumed like certain remedies, or whether it is destined to produce other merchandise, like certain machines or certain tools. The essential thing, to obtain the monopoly of manufacture, is that the thing produced be new, that it have a real importance, that its use be licit, that it have been invented by him who claims the privilege of manufacturing it, and that the process of its manufacture has not been disclosed by the use of the thing or otherwise.

The word invention does not designate only the discovery of an entirely new thing; it also serves to designate the additions or improvements made to things already known. Somewhat complicated machines are rarely the product of the discoveries of a single man; they arrive at a certain degree of perfection only by the additions that are made to them successively. Now, each addition that increases their power or utility is a discovery for the exploitation of which a patent may be requested. The application and the grant of the privilege must, moreover, bear not on the perfected thing, but only on the addition or the improvement that has been made to it. The grant would be null, as will be seen later, if it bore upon the thing in its entirety.

The English laws consider the exclusive exploitation of a discovery in the arts as a true monopoly, that is to say, as a restriction on the right that belongs to everyone to engage in the exercise of an industry which, in itself, has nothing illicit about it. The privilege given to the inventor therefore does not result from the sole fact of the invention; it results from the grant made to him by the public authority. Now, this grant cannot take place if, before it is made, other persons are in possession of the discovery. The inventor who, in any manner whatsoever, discloses his secret before having obtained a privilege, thereby gives to everyone the faculty of putting it into practice. This faculty, once acquired, can no longer be taken away, even if no one has yet made use of it.

The French laws, after having considered every discovery as the property of him who is its author, nevertheless dispose in the same manner as the English laws. They date the inventor's privilege not from the day he made his discovery, but from the day the minister of the interior delivers to the inventor a certificate that attests to the receipt of his application. In France, as in England, the author of a discovery can no longer claim to exploit it exclusively if, before obtaining his privilege, others have acquired the knowledge necessary to put it into execution [^228].

This disposition, however rigorous it may appear, is nevertheless only the application of a principle of justice that all peoples must make it their duty to observe. It is but a consequence or an application of the guarantee given to legitimately acquired means of existence, to legitimately formed hopes. This guarantee, which applies to all kinds of industry and to all properties, is more important than the encouragements given to commerce by monopolies. Wherever it is lacking, every other means of making the arts and commerce prosper is illusory; it is the first and the greatest of encouragements. If the author of a discovery already known to the public and whose exploitation is permitted to everyone were admitted to request a monopoly for it, one could not grant his request without running the risk of infringing upon establishments already formed under the protection of the laws. The losses that would result from an infringement of this kind, and the fears it would inspire in those who might propose to form industrial establishments, would be, for society, more grave evils than the forfeiture pronounced against an inventor who has not known how to keep the secret of his invention. The privilege attached to a discovery can therefore, like all other monopolies, exist only by the grant that the public authority makes of it to the inventor; and the grant can be valid only insofar as, at the moment it took place, no one had engaged in the exploitation of a similar industry.

The first condition imposed on an inventor who wishes to obtain the privilege of exploiting his discovery is to set forth clearly in what it consists. This exposition, to which is given the name of specification, must be conceived in such a manner that, in reading it, any man of average instruction can have exact ideas of the invention, and put it into practice, if he is skilled in the art to which it relates. According to English jurisprudence, the inventor must describe not only the invented thing, but also the method according to which he made it; he is bound, moreover, to indicate the material of which he composed it. He must exclude from his description everything that is foreign to his discovery, everything that could render it obscure [^229].

The decree of the Constituent Assembly, of 31 December 1790, imposes on the inventor the obligation to give an exact description of the principles, means, and processes that constitute his discovery, as well as the plans, sections, drawings, and models that might relate to it. This disposition, consistent with what is practiced in England, has for its object to determine, in an exact manner, the nature and extent of each discovery, to give the public a perfect knowledge of the invention, and to furnish industrious men who wish to make industry progress with the means of assuring themselves that they are not encroaching upon the privileges acquired by other inventors.

English jurisprudence is very severe regarding the exactness it requires in descriptions; it declares null all grants accorded on the basis of specifications made in a manner so as to mislead the public, or to leave it ignorant of a part of the discovery. An inventor, for example, who, in the description of his discovery, included parts that are old, while letting it be believed that the invention of them belongs to him, would lose, by this fact alone, the privilege of manufacturing the parts whose discovery is his. He must describe only what he has invented, or, if he describes the whole thing, he must indicate, in an exact manner, the parts that are old and those that are new. The French law disposes in this regard in the same manner as the English law.

The omission, in the description, of some essential parts would also suffice to invalidate the grant of the privilege, especially if one had reasons to think that it was done voluntarily, and with a view to deceiving the public. The grant can likewise be annulled if the author has expressed himself in terms so ambiguous that they could apply to various processes, without one having the means of knowing, by the description, which is the one that must produce the desired result. It would likewise be null if the inventor had included, in his description, useless things of which he does not himself make use, with a view to rendering his discovery more complicated, and to misleading those who would wish to imitate it. The inventor who set forth several means of obtaining a result would be stripped of his privilege if, among the means indicated, there were one that did not produce the announced effect. It would be the same if he attributed to the invented thing qualities it does not have, effects it cannot produce; if he did not indicate all the means of creating the thing of the best quality, or if he indicated more expensive materials than those of which he himself makes use. The grant of the monopoly is made, in a word, only under the condition that the inventor makes known all that he knows relative to his discovery, and that he attributes to himself only what belongs to him. If this condition is not fulfilled, the privilege vanishes [^230].

The manner of obtaining the grant of a privilege for the exploitation of a discovery is not the same in France as in England. The description or specification is required in both countries; but, when it is made, the procedures are no longer the same. In France, the inventor who wishes to obtain a patent of invention, after having paid the fee required by law, places under seal the description of his discovery, the petition to the minister of the interior by which he requests a patent, the explanatory drawings of his invention, and the inventory of all the documents attached to his application. The sealed packet is deposited at the prefecture, where an official record of the deposit is drawn up on the back of the packet itself, and a copy of the official record is given to the petitioner. Within the week, the documents thus sealed are sent by the prefect to the ministry of the interior, where the official record inscribed on the back of the packet is registered, at the very instant it arrives. Immediately, the packet is opened, and a certificate of his application is dispatched to the inventor. This certificate is his title of property, and cannot be refused to him.

One sees, by this account, that before the delivery of the patent of invention, no one is called upon to pronounce, either on the reality of the discovery, or on its utility, or on the exactness of the description, or on the regularity of the application. The public authority intervenes only to collect a tax, to record a claim and to determine its date. The certificate delivered by it prejudices absolutely nothing concerning the reality, or the importance, or the utility of the invention. If, later, difficulties arise on this subject, between the alleged inventor and his fellow citizens, it is only to the courts that it belongs to pronounce. Everyone is admitted to maintain and to prove, either that the thing is not new, or that the possessor of the patent is not the author of the invention, or that he has not conformed to the conditions prescribed by the laws.

The English government has believed that it could not thus grant a monopoly for the exploitation of a discovery before having had it examined whether a discovery, in effect, exists, and whether it can be useful to the public. The application for letters patent for an invention must pass through several offices, where it is examined by the law officers of the Crown. The object of this examination is to guarantee the public from all deceptions, to protect the crown from being taken by surprise, and to prevent the inconveniences that would result from the grant of the privilege of manufacturing and selling a product unworthy of protection. The officers of the government therefore have the faculty of refusing letters patent to the inventor, and are not bound to give reason for the causes of their refusal. The author of a discovery requests letters patent from them, not as a matter of right, but as a matter of grant or grace; in this respect, the English law is in opposition to the French law [^231]. If they grant them to him, no one is for that reason deprived of the right to call into question the reality, the importance, or the utility of the discovery; everyone is admitted, on the contrary, as in France, to contest the legality of the grant.

The French law watches particularly over the interests of the inventor; it takes all possible precautions so that his discovery is not unjustly taken from him. It does not give to the officers of the government the power to pronounce on the reality or the utility of the discovery, for fear that they might be mistaken or render themselves guilty of injustice [^232]. The English law appears to concern itself with the interests of the public more than with those of the inventor; it gives more confidence to the officers of the crown, and does not fear that they will abuse their authority, to the prejudice of the author of the discovery. It is doubtful, however, that in the end, this solicitude is very profitable to the public; for it hardly happens, one could even say that it never happens, that the government refuses the letters patent that are requested of it. The duties that the inventor is obliged to pay to the treasury, before having drawn any benefit from his discovery, the faculty that everyone possesses of publicly discussing the merit or the reality of the invention, the power given to the courts to pronounce on the legality of the grant of the privilege, and the attention that everyone brings to his purchases, are surer guarantees than the examination to which the officers of the government devote themselves before the delivery of the letters patent.The description or specification that the author has made of his discovery must be inscribed in a public register, which everyone has the right to consult. In England, any person may not only consult this register, but also have delivered to him a copy of a specification that he believes he has an interest in knowing. This disposition has for its object to guarantee to the public the possession of the discovery, and to give to everyone the faculty of exploiting it, when the inventor's privilege has expired. It also has for its object to prevent the losses that industrious men could make, by engaging in works, and by soliciting the grant of a privilege for an industry that would already be privileged. Inventors have sometimes attempted to obtain that their descriptions or specifications not be delivered to the public, alleging that foreigners could profit from their discoveries; but these attempts have had no success [^233]. In France, the description of a discovery could be hidden from the public only by virtue of a special law that would have authorized the secrecy, after the inventor had made known the political or commercial reasons that oppose the publicity.

The inventor who obtains a patent of invention in France is required to put his discovery into practice within the two years that follow, under penalty of forfeiture, unless he justifies the reasons for his inaction. This disposition, which at first appears rather just, nevertheless leaves a vast field for the arbitrary, since it does not say what causes are proper to justify the inventor for not having put his discovery into practice. The author of a discovery who has incurred costs to assure himself its exclusive exploitation, and who nevertheless does not exploit it, certainly has some good reasons to give for his inaction. The faculty given to judges to admit as valid all sorts of excuses, or to reject them all, cannot be considered as a guarantee, either for the public or for the inventor.

The duration of the monopoly that the English laws permit to be granted to the inventor cannot exceed fourteen years; but it is sometimes less considerable. The government determines it, taking into consideration the costs that the putting into operation of the discovery requires, and the probable profits that can be made in a given time. In France, the duration of the monopoly is five, ten, or fifteen years, at the choice of the inventor; as one might have feared that the author of a discovery would always give preference to the longest term, the sum to be paid to the public treasury has been raised in proportion to the duration of the monopoly [^234]. The term fixed for the enjoyment of the privilege cannot be prolonged, either in France or in England, except by an act of the legislative power.

The English laws have determined the number of persons who can take part in the exploitation of a discovery; this number can never be above five. One of the most rigorous conditions under which the grant is made, says an English jurisconsult, is that the inventor cannot cede his patent, nor divide it into shares, nor seek subscribers to exploit it, nor put it into a company, in such a way that more than five persons find themselves interested in it; the infraction of this condition suffices to annul the privilege. The law of 25 May 1794, of the Constituent Assembly, in recognizing for every inventor the right to contract such company as he pleased, by conforming to the usages of commerce, had forbidden him from establishing his enterprise by shares, under penalty of forfeiture of the exercise of his patent; an imperial decree, dated from Berlin, of 25 November 1806, declared this disposition abrogated, and subjected inventors who would wish to exploit their discoveries thus, to provide themselves with the authorization of the Government.

An inventor therefore enjoys in France much more extensive rights than those he would enjoy in England; he can divide his privilege into as many parts as he judges suitable, and give an interest in the success of his enterprise to all the persons who desire to associate with him.

The letters patent delivered by the English government give a privilege to the inventor only for England proper, unless the colonies are also mentioned therein. If the inventor wishes to exercise his privilege over Scotland and Ireland, he must request separate letters patent for each of these two countries. He therefore needs three patents of invention to have a monopoly in the three united kingdoms. This necessity does not appear to have any other object than to swell the revenues of the officeholders.

A patent of invention delivered by the French Government gives to him who has obtained it the right to form establishments in the entire extent of the national territory, and even to authorize other private individuals to make application and use of his means and processes.

There is, in the law of 31 December 1791, a disposition for which it is difficult to find the reason: it states that any inventor who, after having obtained a patent in France, is convicted of having taken one for the same object in a foreign country, will be stripped of his patent. If this prohibition made to the inventor were to have for its result to prevent his discovery from reaching other nations, one could defend it, as one defends all the prohibitions produced by commercial rivalries. But, the register of specifications being open to everyone, one does not see why the author of a discovery is forbidden a means of fortune licit for all other citizens. This prohibition, which it is moreover easy to elude by means of intermediaries, is harmful to the inventor, and cannot produce the slightest advantage for the public.

When a patent has been delivered, it is placed by the English laws and by the French laws in the same rank as other movable properties: it can be exchanged, sold, given, bequeathed by testament, like any other kind of goods.

When the term for which a patent of invention has been granted has expired, everyone can engage in the exercise of the industry for which a privilege had been given. It is nevertheless admitted in France, as in England, that the legislative power can prolong the duration of the monopoly, or rather, grant a new term upon the request of the inventor. As such a prolongation could cause considerable damage to persons who had had the intention of engaging in the exercise of the same industry after the expiration of the privilege, the English laws oblige the inventor to publish, several times, in the newspapers, the request he makes for a new delay. It is only after having thus alerted all interests, and having put all persons to whom the prolongation of the privilege could cause some damage in a position to make their claims heard, that the parliament pronounces on the request, observing the delays and the forms prescribed for the formation of laws [^235]. In France, such precautions have not been taken; it is true that inventors do not make use of the faculty that the law gives them, to request the prolongation of their privilege, and that one has not had, consequently, to prevent the abuse of this faculty.

According to the law of 31 December 1790, the patented inventor whose privilege has been violated can, by giving surety, require the seizure of the counterfeited objects, and bring the counterfeiters before the courts. If the counterfeiting is proven, the seized objects are confiscated, the counterfeiter is condemned to pay the proprietor of the patent damages proportional to the importance of the counterfeiting, and, in addition, to pay into the fund for the poor a fine fixed at one-quarter of the amount of said damages, without this fine being able, however, to exceed the sum of three thousand francs, and double in case of recidivism.

If the denunciation for counterfeiting, according to which the seizure had taken place, were found to be devoid of proof, the inventor would be condemned, toward his opposing party, to damages proportional to the trouble and prejudice that it might have experienced therefrom, and, in addition, to pay into the fund for the poor a fine fixed at one-quarter of the amount of the damages, without the fine being able, however, to exceed the sum of three thousand francs, and double in case of recidivism.

Any person prosecuted for counterfeiting can oppose the proprietor of the patent of invention with all the defects which, according to the laws, annul the privilege, and whose enumeration has been made in this chapter.

The legislative dispositions that the government of the United States of America has adopted on industrial inventions differ only in a small number of points from those that are practiced in France and in England.

The Americans admit patents of invention and of improvement; but they do not grant importation patents; an industry known or practiced in another nation cannot therefore become among them the object of a monopoly.

A foreigner is admitted to request a patent of invention or of improvement; but for that it is necessary that, at the moment he forms his request, he has already resided two years in the United States.

A patent of invention or of improvement is, for the rest, granted for the same objects as in France and in England; it is subject to the same conditions; the duration of the privilege it confers is fourteen years [^236].

In exposing here the nature, the extent, and the principal conditions of a kind of monopoly that has been placed in the rank of properties, I have not proposed to make known to persons who wish to obtain patents of invention the path they have to follow; nor have I had for my object to furnish to those whose industry is hindered by privileges, arguments against patents of invention; I have proposed only to make known the general principles that have been followed in this regard, both in England and in France.

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Notes

[^216]: Richard Godson, Practical treatise on the laws of patents for inventions, p. 379. [^217]: The law of December 31, 1790, and January 7, 1791, provides in such a general manner for the property of discoveries that when it was promulgated, several people requested patents for invention for financial establishments. A law of September 20, 1792, declared that the first applied only to discoveries made in the arts and trades, and that the executive power could no longer grant patents for invention to establishments relating to finance. [^218]: James Godson, Practical treatise, p. 53. Law of December 31, 1790, art. 16, § 3. Decree of the Court of Cassation of January 9, 1828. J.-B. Sirey, vol. XXVIII, 1st part., p. 94-96. – Decree of the Royal Court of Rouen of January 1, 1829. – Ibid, vol. XXIX, 2nd part., p. 65. [^219]: James Godson, Practical treatise on the law of patents for inventions, p. 53. [^220]: Ibid, p. 98-99. — An industry practiced in a foreign country, which was described in a scientific work, could not be the subject of a patent for importation. This seems to result, at least, from the law and the decrees cited in the first note of this chapter. [^221]: Joseph Chitty, Treatise on the laws of commerce and manufactures, vol. II, ch. XII, p. 192. — Richard Godson, Practical treatise, p. 58. [^222]: Law of December 31, 1790, art. 16, § 3. - James Godson, Practical treatise, p. 80. [^223]: Joseph Chitty, Treatise on the laws of commerce and manufactures, vol. II, ch. XII, p. 196-197. - Richard Godson, Practical treatise, p. 60-61. - Decree of the Court of Cassation of February 10, 1806. [^224]: By a decree of June 12, 1830, the Royal Court of Grenoble decided, with reason, that a method of reading, however good it might be, could not be the subject of a patent for invention. -J.-B. Sirey, vol. XXXII, 2nd part, p. 11. [^225]: Joseph Chitty, Treatise on the laws of commerce and manufactures, vol. II, ch. XII, p. 194. [^226]: James Godson, Practical treatise, p. 78-94. [^227]: James Godson, p. 66. [^228]: A manufacturer prosecuted as an infringer does not need to prove, in order to request the nullity of the patent for invention under which he is attacked, that he was personally in possession of the patented industry, or that he possessed the necessary knowledge to practice it, before the patent was obtained; it is sufficient for him to establish that this industry was practiced or known by others than the inventor before the latter had obtained his patent. The judgments that decided the contrary have always been annulled when they have been brought before the Court of Cassation. (See the decrees of December 20, 1808, March 19, 1821, and January 11, 1825, in the Recueil général des lois et arrêts, by M. J.-B. Sirey.) [^229]: Richard Godson, Practical treatise, p. 109. - Joseph Chitty, Treatise on the laws of commerce and manufactures, vol. II, ch. XII, p. 201-204. [^230]: Law of December 31, 1789, art. 16. - James Godson, Practical treatise, p. 102-136. [^231]: James Godson, p. 47. [^232]: Law of May 25, 1791, art. 1. [^233]: James Godson, Practical treatise, p. 143-144. [^234]: The tax is 300 fr. for five years, 800 fr. for ten years, and 1500 fr. for fifteen years. There are also some fees to pay for the issuance of patents and for other acts; but these fees are not very considerable. [^235]: James Godson, Practical treatise, p. 148. [^236]: James Kent, Commentaries on the American law, vol. II, part. 5, lect. 36, p. 299-305.