the settlement of all such questions. So strongly was this feeling entertained in England some years ago, that meetings were held and committees formed, with the countenance and concurrence of the administration of that day, having for their object the construction of a court for patent suits. Such a measure, however, was beset with difficulties, and after much patient attention and inquiry, in the course of which inventors, patentees, manufacturers and men of science were consulted, the project was abandoned as hopeless and impracticable.

The difficulty opposed to the realization of this measure sprung from the infinite diversity of knowledge which must be possessed by any judges who could be regarded as qualified to decide all the possible questions which come before such a tribunal. Let it be remembered that the property in patents involves the consideration of every branch of human research, but more especially the physical sciences-astronomy, optics, mechanics, hydrostatics, chemistry in all its branches, physiology, medicine, surgery. But the sciences, infinite as their range is, form but a part of the knowledge called into play in patent inquiries. The whole extent of the arts and manufactures, in the widest sense of these terms, is involved. What species of judges, what classes of jurymen could there be named possessing general qualifications for the exercise of such a jurisdiction?

Since neither the judge nor the jury can be supposed to be capable of appreciating the actual merits of the questions thus brought before them, recourse has been had to a class of witnesses possessing that species of information in which the court and jury are deficient, and which is, nevertheless, indispensable for their proper guidance in their decision. Such are the scientific witnesses, called, not to testify to particular facts connected with the case, but to enlighten the court on the general principles by which the disputed points ought to be settled. Such witnesses are more properly a sort of sworn assessors to the court, and it is their opinion and judgment which is sought and given, rather than their evidence. Such a class of witnesses is, however, not without example, although in no case so systematically resorted to as in patent suits. In criminal prosecutions, where the circumstances of disease or cause of death are to be ascertained, medical witnesses are called, not to inform the court of the actual facts and phenomena, to

comprehend which would require a bench of physicians, but to aid the court by their opinion and judgment on these facts. That opinion and judgment the court are bound to adopt, unless there be external evidence to impeach the skill or integrity of the witness.

To

In patent suits, the questions which most frequently arise relate to the disputed identity of two contrivances or processes. A obtains a patent for a certain machine, instrument, or process. B makes another machine, instrument, or process apparently different, which accomplishing the same object as that of A, destroys the patented monoply of the latter. A brings his suit against B, alledging that the instruments or processes are substantially the same, and that B has therefore, infringed his patent right. Issue is joined thereupon, and the dispute is brought before a court, consisting of a judge, who may or may not know something of law, but who assuredly knows nothing of science or art, and a jury who know nothing either of the one or the other. Such is the condition of suits respecting patent property both in this country and in Great Britain; and how, it may be asked, can justice be dispensed or the rights of proprietors protected under such circumstances. meet this exigency recourse has been had to the peculiar species of evidence before mentioned. Witnesses are called, who, by their public reputation, professional character, or well-known experience, are authorities upon questions such as that under investigation. They are not produced to testify as to their particular knowledge of the case, but to aid the court and jury by their professional opinion and judgment. The very circumstances of their production in the case involves, by implication, a confession of their authority-an authority which, on the particular question to be determined, is admitted to be above that of the court itself. The consideration to be given to the testimony of such witnesses can only be measured by their public reputation for professional skill, knowledge and experience. The court is entitled also to inquire as to their personal integrity, and as to the existence of any peculiar interests which could be supposed to bias their judgment in the particular case on which they are produced. But neither court nor jury can be supposed competent to canvas the merits of the opinions or judgments which they give, for if they were, they would then be them

selve scompetent, without the aid of such assessing witnesses, to decide the ques

tion at issue.

Were it possible to find judges as familiarly acquainted with all the physical and mechanical sciences, and all the branches of the arts and manufactures as they are with the principles of law and jurisprudence, we might then, indeed, be ready to admit that such functionaries might promote the ends of justice by instructing juries upon the merits of patent questions coming before them, as they now do in the legitimate exercise of their official functions upon the principles of the law; but whatever may be the private and personal acquirements in these departments of individual judges, we are bound to consider these officers as mere depositories of legal knowledge, and to regard their duties in such inquiries as strictly limited to the instruction of the jury on points of law, and the summing up and clear arrangement of the evidence which has been produced.

It would seem, however, that this, which we take to be the only sound view of the judicial functions in such cases, is not always the view adopted by the court. It does sometimes happen that the judge, relying on his own individual skill and knowledge, not of law, in which he would be justified, but of mechanics or chemistry, of which he must be presumed to be profoundly ignorant, takes the case out of the hands of the witnesses, and in charging the jury, gives his own judgment upon it. He examines the disputed machines and processes, not as a lawyer, or in his judicial capacity, but as an engineer, a chemist, or an artizan, and pronounces upon it as a physician would do on the autopsy in a case of suspected murder. Such a course, if allowed or practiced, would, in fact, supersede the production of any evidence. In such instances, the judge strips himself of his judicial character, and virtually descends from the bench to the witness stand. He administers, not law, but science and art. He incorporates in his own person the double character of judge and witness. If such a practice were adopted in the decision of all patent questions, the inquiry would relsolve itself, in fact, into a mere reference to the judge; the disputed machines or processes would be submitted to him, and his judgment upon them, and that alone, would settle the question, independent of witnesses or jury.

A case recently came before the Cir

cuit Court of the United States in this city, which suggested these reflections. In the year 1834 a patent was granted to a person named Emerson, for certain improvements in steam engines, and for a spiral propelling wheel to be applied to steam vessels. From that time to the present the wheel thus patented was never constructed, and, in fact, the patent was never used for the benefit of the public or the inventor. In 1836 a patent was granted in England to Captain Ericson for a new propeller, and in 1838 a patent for the same was granted in the United States. From that time to the present, considerable numbers of propellers have been made under this patent, in this country and in Europe, both for national and Commercial vessels. The patent in fact has proved largely advantageous, both to the world and the patentee.

An action was lately brought by Emerson against one of the engineers who constructed Ericson's propellers, for an infringement on the patent of 1834. When the commercement of this suit became known, the Secretary of the Treasury at Washington, aware that the propeller of Ericson had been adopted in the U.S. Navy, ordered an investigation to be instituted by the official examiners at the patent office, with the view of ascertaining whether there really existed any grounds for the alleged identity of these two machines. A strict investigation of the matter took place, and an official report was made to the effect that the two contrivances were substantially different, and had in fact nothing in

common.

The question before the court was one which resolved itself into an appeal to the judgment of persons skilled in theoretical and practical mechanics. The facts were few, simple, and undisputed. The specification of Emerson was produced and admitted; the propeller of Ericson, charged with infringing that specification, was also produced in model, and admitted by both parties. Some extraneous and collateral matter, having no relation to our present views, was also brought forward, which will require no especial notice here. In such a case the evidence was, as indeed it must have been, confined to the producing of witnesses of reputed knowledge, skill and experience, whose opinions and judgment would form the ground, and the only ground, on which the court and jury could decide the case; and the point to

which the evidence of such witnesses was directed, was simply whether or not the machines invented by Emerson and Ericson were substantially the same. The evidence produced on the side of the plaintiff was limited to two witnesses, by name Serle and Alair. The former gave an opinion in favor of the general similitude of the two machines, but, on cross examination, materially qualified his testimony. The evidence of the latter was of such a character that the counsel for the defendant did not think it worth while to cross examine him. On the part of the defendants a great body of evidence was produced. Dr. Lardner and Professor Mapes declared that the principle and construction of the machines were substantially different, and had nothing in common; Mr. Cox, a mechanical draftsman and patent agent, deposed, that it would be impossible, from Emerson's specification, to construct any thing resembling Ericson's wheel; three operative mechanics in the employ of different engineering establishments, one of whom was engaged as a practical engineer in the United States Navy department, declared that there was no similitude whatever between the machines, and that they could construct nothing like Ericson's wheel from Emerson's specification. Mr. Keller, the Examiner in the Patent Office for this class of inventions, repeated on oath the substance of the report which had previously been rendered to the Secretary of State. Dr. Jones, Patent Agent at Washington, who had prepared the original specification and drawings for Emerson, gave testimony to the same effect. Such was the overwhelming mass of evidence produced for the defence. It might be supposed, under such circumstances, that the duty of the court and jury was of a very obvious and simple character on the part of the judge, to sum up and arrange the evidence, and to explain to the jury the relative value and authority to be ascribed to the opinion and judgment of such men as Mr. Serle and Mr. Alair, on the one hand, and of Dr. Lardner, Professor Mapes, Mr. Keller, Dr. Jones, Mr. Cox and the host of practical witnesses on the other. It would perhaps have been natural and proper to have said, that the judge, as a lawyer, and the jury, as merchants and tradesmen, could not be expected to form a very correct or sound judgment on problems in mechanical science; but that they had before them, for their guidance,

the sworn opinions and judgment of men of every class, conversant professionally with science, from the university professor and scientific engineer, to the artisan who wrought with his hands at the lathe and the anvil;-that they would consider, therefore, the credit to be given to such opinions, and arrive at their decision accordingly. The court and jury, however, took a different view of their functions. Every man, it is said, imagines himself a mechanic. At all events, it seems that on this occasion, they felt no doubt that they had more science than Messrs. Lardner and Mapes, more skill in patent inventions than Messrs. Keller and Jones, more sagacity in interpreting complicated drawings than Mr. Cox, and more practical knowledge than a troop of working mechanics. The opinions and evidence of all these witnesses were very coolly put aside as unnecessary, and a collection of drawings and models, sufficiently various and complicated to have puzzled the heads of a dozen mathematicians, became the subjects of examination and discussion. Entrenched within a rampart of these mechanical curiosities, and surrounded by a wilderness of sections, plans and elevations, the members of the court and jury proceeded to enlighten each other on the principles of physical science. The witnesses themselves, professionally skilled in such matters, had declared it was impossible to discover the meaning of one of the drawings of the plaintiff's wheel. The court found no difficulty in guessing at its meaning. Its resemblance to various objects in re

rum natura were obvious.

Ham.--That's almost in the shape of a camel.

Pol. By the mass, and 'tis like a camel, indeed.

Ham.-Methinks, it is like a weasel.
Pol.-It is backed like a weasel.
Ham. Or, like a whale.
Pol.-Very like a whale.

Thus the Jury found their easy way to the conclusion, that two things were substantially identical, which had been proved, by the most congruous and incontrovertible testimony, to be as distinct as a whale is from a weasel. Rut this, which would have been absurd enough, was not the worst consequence of this tissue of blunders. The profits arising from the manufacture of Ericson's propellers were estimated, and a verdict given against the defendants for their entire amount. Thus were the fruits of

the labor, ingenuity and capital of a successful inventor, and the profits arising from the manufacture of a machine of great public utility, awarded to a person who had been proved to have had no more concern in the invention than the the jurors themselves.

That the party, in cases of this sort, may carry the question before the Supreme Court at Washington, and there obtain justice and redress, is very inadequate compensation for the loss of money and time, the derangement of existing contracts, the suspension of those in progress, and the injurious effects produced on the public reputation attached to the patent. We feel the more strongly urged to put this matter prominently forward, inasmuch as the class of persons aggrieved by the inefficiency of our tribunals, are too limited in number to make an impression, as a body, on public opinion and feeling. It is a paramount duty of the general government to provide that kind of protection for inventors and patentees, which is supplied by competent tribunals for the decisions of suits in which their interests are involved; and no one will maintain that a judge, whether he be elevated to the bench by his legal acquirements and professional eminence at the bar, or, as sometimes happens, through political interest, can be competent to decide questions involving difficulties and doubts, more or less considerable, arising out of questions in mechanics, engineering, chemistry or the arts. As little is it likely that such questions could be rightly estimated or justly decided by a jury of merchants and tradesmen, however enlightened or intelligent. To form a tribunal of permanent judges, competent to decide all such questions, has, we believe, been attempted elsewhere, and attempted in vain. Under these circumstances, we cannot imagine or discover any measure which will give patent property the protection to which it is entitled, except to limit the province of the judge and jury in such cases, as indeed it is limited in others, to decide according to the evidence, and not according to their own knowledge, real or pretended, of the arts and sciences. It is true that it may, and will sometimes happen, that individuals may be impanneled on the jury, who are eminently competent to form an opinion on the scientific merits of the question before them; but we contend that such persons should either not use the knowledge they thus

accidentally possess, for the purposes of the trial, or, if they do, that they should appear in the court, not as jurors but as witnesses, so that they may be liable to cross-examination so as to test the soundness of their opinions. And this is altogether in harmony with the practice of law and the principles of justice. In other species of evidence it is admitted, that a juror cannot, for the purposes of the suit, use his private or individual information regarding the case; nay, the very possession of such information, is itself enough to disqualify him as a juror. Nor is it different with the judge. Both are peremptorily required to decide according to the evidence, and according to nothing else.

If it be urged that scientific witnesses can always be obtained, ready to testify to either side of such questions, we answer, that in this respect, patent questions are not peculiar. In all questions which are not of the most simple character, conflicting testimony is produced; and it is the province of the jury to estimate the skill and integrity of the witnesses, and to exercise their judgments in determining the side on which truth most probably lies. They must exercise the same sagacity in regard to scientific witnesses, and where their testimony is conflicting, they must balance the reputation for knowledge and skill, the integrity of character, the bias liable to be produced by personal interests and predilections, and decide accordingly; but we are certain that it is a gross and intolerable abuse of the functions both of judge and jury, to exercise a judgment on the merits of the questions themselves independently of the evidence.

It may be worth consideration, whether in cases left doubtful by the conflicting testimony of scientific witnesses, the ends of justice might not be promoted by authorizing the court to summon persons of known skill and reputation on the subjects under inquiry, to give their evidence and opinion to aid the court and jury. In other words, that the court should nominate such scientific witnesses, as it might think fit, in addition to those produced by the parties. Such witnesses would probably afford more unbiassed evidence than those selected by the litigants, since it could scarcely be expected that either party would willingly produce any witness, except one whose opinion was known to be favorable to his own side of the question