THE POPULAR SCIENCE MONTHLY.
|RECENT ADVANCE IN THE LAW OF INTELLECTUAL PROPERTY.|
By BENJAMIN VAUGHAN ABBOTT.
THE indications seen during the past two years of advance in the law protecting intellectual property are interesting and important. This article will describe some of the more salient steps—the legislation and lately reported decisions—which are of interest to all friends of practical science. That such readers have a general knowledge of the system which has been established by Congress in order "to promote the progress of science and the useful arts"—the patent and copyright laws—may be taken for granted. Without rehearsing principles that have been long established, let us speak at once of matters lately questioned or newly declared.
During the last decade trade-marks became associated in the public mind with patents, owing to the fact that in 1870, when a codified statement of the patent and copyright laws was moved in Congress, that body interleaved a chapter embodying a national trade-mark law. This was done apparently on the theory that the three subjects were so homogeneous as to warrant considering trade-marks embraced within the constitutional power; and this position stood unchallenged for several years. But, when challenged, it was overthrown. The Supreme Court pointed out that the power is limited to securing to authors and inventors the right to their writings and discoveries; and said that a trade-mark can not be classified either with inventions or discoveries in the arts and sciences, or with the writings of authors; and that, if any law of Congress on the subject can be sustained, it must be one limited to marks intended for foreign (or Indian) commerce. An act has been passed (March 3, 1881) conforming to this view. It authorizes inhabitants of the United States or of any foreign country which reciprocates to register trade-marks, and protects their use in foreign (and Indian) commerce only. Trade-marks have thus been distinctly dissociated from inventions, as they should be.
Just as naturalists pronounce it difficult to draw a distinct line between plants and animals, so lawyers are finding confusion between what is a book, what a machine. A new system of book-keeping, consisting of a book of forms or blanks, the pages of which contained ruled lines and headings showing how a merchant's account-book might be prepared on a new and advantageous plan, was copyrighted; but the Court, when an imitator was sued, said that all that could be secured under the copyright law was the right to print the introductory essay, and the particular columns and headings by way of sample. To secure the control of the new system of book-keeping, the contriver