Com. v. Petty

• Decision Date: 22 January 1895
• Citation: 96 Ky. 452,29 S.W. 291
• Parties: COMMONWEALTH v. PETTY.
• Court: Kentucky Court of Appeals

29 S.W. 291

96 Ky. 452

COMMONWEALTH v. PETTY.

Court of Appeals of Kentucky.

January 22, 1895

Appeal from circuit court, Christian county.

"To be officially reported."

Prosecution of Ebenezer Petty for selling the use of a patent right without a license. From a judgment sustaining a demurrer to the indictment, the state appeals. Affirmed.

W. J Hendrick, Atty. Gen., for the Commonwealth.

PAYNTER J.

The grand jury of Christian county returned an indictment against the appellee, Ebenezer Petty, charging that he did unlawfully sell and offer for sale the patent right to make and use a certain machine or contrivance called a post and pile driver and did sell territory for the use, sale, and manufacture of the post and pile driver, without first having obtained a license as required by law, and that at the time he was an itinerant person selling and offering to sell the patent right and territory as stated. This indictment is under the statute which imposes a penalty on all itinerant persons who vend patent rights or territory for the sale, use, or manufacture of patent rights, without procuring and paying for a license authorizing such sale. The law fixes the fee for the license that shall be paid. The appeal is taken from a judgment of the court below sustaining a demurrer to and dismissing the indictment.

The sole question is as to the validity of the statute which requires a patentee or his vendee or assignee to first procure and pay for a license before he is authorized to vend his patent right or territory for the sale, use, or manufacture of his patent rights. This statute in effect declares unlawful the sale of any patent right, or the sale of any part of the territory which is covered by such patent right, to any one, unless the vendor first procure from the officials, as provided in the statute, a license authorizing the sale. The eighth clause of section 8 of 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 given to congress has been exercised by it since the organization of the government. Statutes have been enacted relating to the subject, and the provisions thereof fully prescribe the circumstances and the manner of the issual of patents, how they may be transferred, and the character and extent of the rights which they confer on the patentee or his vendor or assignees. The moment the patent is granted, the rights of the patentee are complete. Even his property rights cannot be destroyed or impaired by congress subsequently repealing the law which authorized the granting of it. McClurg v Kingsland, 1 How. 206. A patent right is not a tangible property. It is an incorporeal right. The patent secures to the patentee the exclusive right in the discovery. The supreme court, in the case of Patterson v. Kentucky, 97 U.S. 501, said: "The right of property in the physical substance which is the fruit of the discovery is altogether distinct from the right in the discovery itself just as the property in the instruments or the plates by which copies of a map are multiplied is distinct from the copyright, as the map itself. Stephens v. Cady, 14 How. 528; Stevens v. Glading, 17 How. 447." The incorporeal right, or the right in the discovery, congress has full and complete authority to secure to the inventor, and protect him in its enjoyment, and against all interference. Justice Field, in delivering the opinion of the supreme court of the United States in Webber v. Virginia, 103 U.S. 344, said: "It is only the right to the invention or discovery-the incorporeal right-which the state cannot interfere with." It is proper that this authority should be exercised, that the efforts of genius may be rewarded, thus stimulating and encouraging the production of useful inventions. When the property is brought into existence by the application of the discovery, and is brought into or produced in the state, the use of it is not beyond the control of its legislature. The question as to the use of property thus produced is not involved here. In Gayler v. Wilder, 10 How. 494, Taney, C.J., said: "The monopoly granted to the patentee is for one entire thing; it is the exclusive right of making, using, and vending to others, to be used, the improvements 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, cannot be regulated by rules of common law. It is created by the act of congress." In Illinois, a statute...