The second trial was raised to know if, when a working man is only executing the orders given to him by another party, with the indications and in the interest of this last, the working man may be reputed the inventor, and if the results of his labour may have the character of an invention, so that he may claim [revendicate] its ownership by a Patent. The Court decided for the negative.
We pass four other suits running on the interpretation of this first article, that seems so innocent, so inoffensive, and come to the eleventh trial. In conferring by Article I., under the conditions that it determines, on the author of new discoveries or inventions the right of working them exclusively for his own benefit, did the law intend to deprive of all rights those who were using the same means of fabrication prior to the delivery of the Patents? The question was, in other terms, to know whether the Patent is good and legal against every one except against the party who, having worked it for a certain period anterior to the granting of the Patent, might be kept in possession of his industry? On March 30, 1849, the Court of Cassation decided for the affirmative in the case of “Witz Meunier versus Godefroy Muller.” You fancy, perhaps, that the affair is all right and settled; the Court of Cassation has spoken, and every inventor who will not have taken a Patent may work out his invention without fear of prosecution from a patentee coming long after. You are greatly mistaken. You do not know how keen, and ardent, and clever, and anxious are the seekers of Patents. Previously to that the Court Royal of Paris had declared in May, 1847, in the case of “Lejeune versus Parvilley,” that the Patent can be put in force against the manufacturer working the invention before it was patented, if he has not published it before the patentee, and if the patentee is the first who has introduced it in commerce. But in 1847 the Court Royal of Paris did not know the opinion given in 1849 by the Court of Cassation. We see how unsafe are the things of this world. Say if you can ever be sure of holding and knowing the truth.
On August 19, 1853, the same question was brought again before the Court of Cassation in the case of “Thomas Laurent versus Riant,” and the Court decided that the Patent can be put in force against whoever possessed the invention before it was patented. There is at Lyons a manufacturer who for a great many years fabricated a dye for which he has not taken a Patent, but the secret of which he carefully keeps to himself. If, by some manœuvring, by some doubtfully moral means, an industrialist—as there are too many amongst the patentees—contrived to worm out this secret, and got a legal Patent, he could work the discovery and oblige the Lyonese manufacturer to cease all productions of the same kind. Would it not be an admirable example of legality?
The contradiction that we have just noted between two verdicts given by the same Court upon the same question gives us the right to say that the magistrates ought to show a little more indulgence to those they condemn. When there is a law like that relative to Patents, common mortals are very excusable if they make a mistake in interpreting in a wrong way this or that expression, since we see the highest Court in the country giving sometimes one interpretation and sometimes another.
The first article of the law has given rise to fifteen different suits, inscribed in the pages of the volume we hold. These fifteen suits have been tried before the Civil Courts or the Court of Cassation. People may well be frightened at the mountain of papers that must have been used and destroyed by the attorneys, counsel, barristers, &c., before the public could have any clear notion of what the legislators meant.
The second article is as follows: “Will be considered as new inventions or discoveries—the invention of new industrial produce; the invention of new methods or the new application of known methods to obtain an individual result or produce.” This article, we may say, is the main beam of the edifice, consequently it has given occasion to no less than 104 suits. One might fancy that the multitude of judicial decisions given by the Courts has thrown the most brilliant light on the interpretation to be given to the three paragraphs forming the second article. Alas! these paragraphs are just as obscure as before. For instance, the Imperial Court of Paris decided on August 13, 1861, that the “change in the form of a surgical instrument, even when there may result an advantage or greater facility to the operator, cannot be patented.” But on July 26 of the same year it had decided that “a production already known—a straw mat, for instance—may be patented when its form, its size, and its length are new.” So, again, the Court of Cassation decided, on February 9, 1862, that “the production of a new industrial result is an invention that may be patented, even if it is only due to a new combination in the form and proportions of objects already known.” On the contrary, the Correctional Court of the Seine decided on December 24, 1861, that a modification of form, even when it procures an advantage, is not of a nature to constitute a patentable invention. Can we not say with the poet:
“Deviner si tu peux, et choisis si tu l’oses?”
The lawyers of Great Britain are accustomed to celebrate certain anniversaries by a professional dinner. The President of the party, after having proposed the health of the Queen and the Royal Family, calls upon his brethren to join in a toast to the prosperity of the profession they follow. This traditional toast is characteristic enough. It is as follows: “The glorious uncertainty of the law!” We think the facts we have related give to this toast a right of citizenship on this side of the Channel.
T. N. Benard.