is framed in a way to include two species of public benefactors: the one, those who benefit the public by their ingenuity, industry and science, and invention and personal capability; the other, those who benefit the public without any ingenuity or invention of their own, by the importation of the results of foreign inventions. Now, the latter is a benefit to the public incontestably, and, therefore, they render themselves entitled to be put upon somewhat, if not entirely, the same footing as inven tors If an invention be simultaneously arrived at by two individuals, the one who first takes out a patent in respect of it is considered to be the true and first inventor. In some cases difficulty arises in determining as between employer and workman who is the true and first inventor. A very recent decision will illustrate this. In In re Marshall and Naylor's Patent the revocation of a patent was obtained on the ground that the patentees were not the first and true inventors, but had obtained the invention from a workman in the employment of a Company of which the patentees were directors, and had obtained the grant of the patent in fraud of the rights of the workman, who was held to be the first and true inventor. Again, the rules, as to the requirements of novelty and utility have received expansion by means of judicial interpretation. Novelty of the subject matter is an essential condition to the grant of a patent. Any invention already known These words have been quoted as late as last August by Lord Halsbury in his judgment in Walter and another v. Lane, 1900, 69 L.J. Ch., at p. 705. The Lord Chancellor also observed that an interesting discussion of this question will be found in Messrs. Wallace and Williamson's work on Patent Law just published. ✦ June, 1900, 17 R.P.C. 553. This case is not cited in Messrs. Wallace and Williamson's work, which presumably was in the press before the date of the report. to the public by description, exhibition, or user, is not patentable. Anticipation by prior publication or user, therefore, defeats the right to a patent. With regard to anticipation by publication, in a decision of the Court of Appeal this year* a patent was held invalid for want of novelty on the ground that it had been anticipated by the publication of an American specification. As to what amounts to anticipation by previous user, there is a long series of decisions, the most recent of importance being a case in 1898. In certain foreign countries a time limit is imposed by law to 'ancient anticipations.' For instance, in Hungary and Portugal an invention is regarded as new notwithstanding publication or working, if between its last publication or working and the application for a patent, a term of one hundred years has elapsed. The importation of a similar rule into English Patent Law would be of benefit. The advantage of some system of official examination as to the novelty of inventions sought to be patented is much disputed. Under the English Patent Law there is no preliminary examination into, or guarantee of the novelty of a patent by the Patent Office. In some foreign countries, on the other hand, notably in the United States, there is a preliminary examination into the novelty, but it is to be observed that a preliminary examination of patents in those countries where it exists never involves any guarantee on the part of the State that a patent is novel or useful as against third parties, and in many cases, e.g., in The Electric Construction Co., Limited v. The Imperial Tramways, Limited, and the British Thomson Houston Co., Limited, June, 1900, 17 R.P.C. 537. + Hoe v. Foster, 16 R.P.C. 33. A Bill was, in fact, introduced in 1895 by the present Master of the Rolls, Mr. Fletcher Moulton, Q.C., and Mr. Haldane, Q.C., which proposed a limit of fifty years in the case of ancient anticipations. France, Belgium, Russia, and guarantee is expressly disclaimed*. Switzerland, such a A Committee appointed by the Board of Trade is at present enquiring into the question whether any and what additional powers should be given to the Patent Office to control, impose conditions on, or otherwise limit, the issue of letters patent in respect of inventions which are obviously old, or which the information recorded in the office shows to have been previously protected in this country. The report of this Committee will be watched with interest. The utility of the invention is another condition of its patentability, inasmuch as no grant is valid which does. not tend to the benefit of the community. Urgent necessity to the public is not, however, requisite to support a patent, for the cases show that a comparatively trifling invention, a child's toy, for example, may be of sufficient utility to be patentable. The ascertainment of the necessary degree of utility has led to much litigation. It has been said in an important case decided during the present yeart that utility in patent law does not mean either abstract utility, or comparative or competitive utility, or commercial utility, but as applied to an invention means an invention better than the preceding knowledge of the trade as to a particular fabric, better, that is, in some respect, though not necessarily in every respect. Another suggested test of utility is that an invention is useful for the purposes of the patent law when the public are thereby enabled to do something which they could not do before, or to do in a more advantageous manner something which they could do. * The foreign and colonial law has been collated and discussed by Mr. A. Wood Renton, in an article on Preliminary Examination of Patents and Compulsory Licences in the Journal of the Society of Comparative Legislation, New Series, No. V., August, 1900. + Welsbach Incandescent Gas Light Co. v. New Incandescent (Sunlight Patent) Gas Lighting Co. [1900], 1 Ch. 843. before, or, to express it in another way, that an invention is patentable which offers the public a useful choice. In addition to the incidents of novelty and utility, a certain degree of invention or special ingenuity is a sine qua non to the grant of a patent. The determination of the existence of this attribute presents in many cases one of the most difficult problems in Patent Law. The subject of compulsory Licences is one of increasing importance. The Act of 1883* enabled the Board of Trade, on the petition of any person interested, to order licences to be granted by a patentee, if it be proved that by reason of the default of a patentee to grant licences on reasonable terms the patent is not being worked in the United Kingdom, or the reasonable requirements of the public with respect to the invention cannot be supplied, or any person is prevented from working, or using to the best advantage, an invention of which he is possessed. For many years after the passing of the Act advantage was not taken of these provisions, but during the last two or three years there have been several applications for compulsory licencest, and the importance of the provisions seems to be now fully appreciated by the public. The existence of legal machinery for obtaining, under certain circumstances, a compulsory licence from the patentee, is clearly of value, tending as it does to prevent an abuse by the patentee of his rights, but the jurisdiction is one that should be exercised with extreme caution. The law, with regard to compulsory licences, has been carefully discussed by Messrs. Wallace and Williamson, in their work on Patent Law‡, who criticise adversely, but with justice, the present tribunal and procedure. Applica 46 and 47 Vict. c. 57, s. 22. + The cases will be found collected in Gordon's Compulsory Licences under the Patents Acts. Chap. XIX. tions for compulsory licences are referred by the Board of Trade to a legal expert as referee, for consideration and report. This, as Messrs. Wallace and Williamson point out*, can hardly be called a convenient form of tribunal, as the referee who hears the case has no power to do more than report, while the Board, which does not hear the evidence, grants or refuses the order for a licence. There are the further objections that the referee's report is ot in the form of a judgment, but is a bare order dismissing the application or granting a licence on specified terms. Amendment of the procedure, if not a reconstitution of the tribunal, is necessary, in order to secure public confidence, and legislation on the subject seems desirable. Mr. J. W. Gordon, in his recent work on the subject†, points out that the High Court has full authority, were it minded to exercise that authority, to impose terms such as are now imposed by the Board of Trade, and that plain and stringent provisions for securing the public against the strained or unreasonable assertion of patent rights exist, but the Court has wholly abandoned this branch of its jurisdiction, and has even formally declined to entertain any question of public convenience as against the pretensions of a patenteet. The Committee recently appointed by the Board of Trade, to which reference has already been made, are inquiring, and will in due course report, whether any, and, if so, what amendments are necessary in the existing law as to Compulsory Licences§. A few words may not be out of place here with reference to the extension of the duration of a patent beyond the * ibid. at p. 50. + Compulsory Licences under the Patents Acts (1899) at p. 5. ibid; see also the judgment in The Incandescent Gas Light Co., Limited, v. Cantelo, 1895, 12 R.P.C. 264, 266. § The principle of compulsory licences is adopted by many of the Colonies, and by some foreign countries. See the article by Mr. Wood Renton, referred to ante p. 13, note. |