Ball v. Hunt

• Decision Date: 30 September 1873
• Citation: 1873 WL 8558,22 Am.Rep. 63,70 Ill. 109
• Court: Illinois Supreme Court
• Parties: HOLLIDA & BALLv.WILLIAM H. HUNT.

70 Ill. 109

1873 WL 8558 (Ill.)

22 Am.Rep. 63

HOLLIDA & BALL

v.WILLIAM H. HUNT.

Supreme Court of Illinois.

September Term, 1873.

APPEAL from the Circuit Court of Mercer county; the Hon. GEO. W. PLEASANTS, Judge, presiding. This was an action of assumpsit, by William H. Hunt, against Hollida & Ball, upon a promissory note given by the latter to Charles T. Davison, and assigned by him to plaintiff. The plaintiff recovered in the court below, and the defendants appealed.

Messrs. PEPPER & WILSON, for the appellants.

Messrs. BASSETT & CONNELL, for the appellee.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The question is presented, by the first error assigned, whether the act entitled “An act to regulate the sale of patent rights, and to prevent frauds connected therewith,” approved March 25, 1869, can be sustained as a valid and constitutional enactment.

The substance of its several provisions is as follows:

The first section makes it unlawful for any person to sell, barter, or offer to sell or barter, in any county in the State, any patent right, without first making the affidavit and proof required by the second section.

The second section requires any person desiring or intending to barter or sell any patent right, before offering to barter or sell the same, to submit to the clerk of the county court of the county in which he desires to pursue such business, for his examination, the letters patent, or a certified copy thereof, and his authority to sell or barter the right so patented, and, at the same time, make a prescribed affidavit; and if such clerk be satisfied that the right so intended to be sold or bartered has not been revoked or annulled, and that the applicant is duly empowered to sell the same within such county, etc., the clerk shall record the affidavit and letters patent, and give a certificate thereof.

The third section requires any person to whom such certificate may be issued, to exhibit the same on demand. The fourth section provides that there shall be written or printed in every promise or obligation in writing, the consideration of which, in whole or in part, shall be a patent right, the words, “given for a patent right;” and all such obligations or promises, if transferred, shall be subject to all defenses, as if owned by the original promisee.

The fifth section imposes penalties for a failure to comply with the preceding sections.

The sixth section requires the payment of a fee of $3 to the county clerk, for his services in taking proof.

The eighth clause of section 8, article 1 of the constitution of the United States, confers authority upon Congress “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 power thus conferred has been exercised by Congress since the organization of the government; and, without under-taking to notice the various provisions of the statutes of the United States relating to the subject, it is sufficient to say these provisions fully prescribe under what circumstances and in what manner patents shall be issued; how they may be transferred, and the character and extent of the rights invested in the patentee or his assignees.

When the patent is granted, the rights of the patentee are complete. He has then a property right in it, which can not even be impaired by a subsequent repeal of the law under which it was granted. McClurg v. Kingsland, 1 Howard, 206.

“The monopoly granted to the patentee,” says TANEY, C. J., in Gayler v. Wilder, 10 Howard, 494, “is for one entire thing: it is the exclusive right of making, using, and vending to others to be used, the improvement he has invented, and for which the patent is granted. The monopoly did not exist at common law, and the right, therefore, which may be exercised under it can not be regulated by the rules of the common law. It is created by the act of Congress, and no rights can be acquired under it unless authorized by statute, and in the manner the statute prescribes.”

The right to vend necessarily implies the power to do so wherever the jurisdiction of the authority conferring the right extends. To say that a right exists, yet it can only be exercised on such terms and conditions as may be imposed by an authority other than that conferring the right, necessarily concedes the supremacy of the latter.

It was said by MARS...