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Gibbons

enable the patentee to use his invention in despite 1824. of them. The object of a patent, granted in pursuance

Ogden. of the delegated power, is to perfect an imperfect right, by exactly ascertaining, if I may say so, its means, and boundaries, and identity, and by affording an adequate remedy for its violation. The precise nature of the remedy is within the discretion of Congress; but the nature of the evil it purports to remedy, is entirely illustrative of the extent of the power delegated to Congress. The patent law itself shows that its object is, to turn the imperfect right into property, for it directs, that the applicant's petition shall signify a desire of obtaining an exclusive property in his improvement. And the clause giving the remedy, shows the injury against which Congress intended to guard, and against which alone it had any power, under the constitution, to provide a guard: where any person " shall make, devise, use, or sellthe thing, whereof the exclusive right is secured to the patentee by such patent, &c.* But, no remedy is provided against preoenting the patentee from making, deoising, using or selling the thing 80 patented. That, if any grievance at all, is one not within the purview of the act, nor within the powers of Congress, and against which, therefore, no remedy is there provided.

The object of this power, and of the law made under it, is to give to the pre-existent but imperfect right, the security and attributes of actual

& Act of Feb. 21, 1799, s. 1.

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Gibbons

1824. property. When the law of Congress has done

that, it is functus officio; and it leaves that right,

which it has placed in the class of actual proOgden.

perty, to be used and enjoyed like every other kind
of actual property, conformably to the laws of the
place where it is to be enjoyed. That which is
thus the object of the power and law of Congress,
is the patent-right, which it has, as it were, con-
verted into a chattel. But the difference between
the patent-right and the thing patented, is great
and palpable, equal to the difference between a
copy-right and a book. If a State attempted to
authorize a violation of these rights, to enable
another to make use of or vend the thing patented,
or to print the book, or to throw open and in com-
mon, the patent-right or the copy-right, then its
law would be unconstitutional. But the rights,
and only the rights, are the object of the power
and laws of Congress; the things themselves are
personal property or chattels of the ordinary kind,
to be enjoyed, like all other property, subject to
laws over which Congress has no control.

If so, why has not a State a right to prohibit
the use of the thing patented within its jurisdic-
tion? It can do so, as to all other kinds of pro-
perty. It is no argument to say, that if one State
can do it, every State can do it. If every State
wished to do it, how could they, or why should
they, be prevented? But, is not that the case
with every kind of property? And if they should
extend that power over any species of unpatented
property, could Congress interfere? The indivi-
dual States having that power over every kind of

Gibbons

Y.

originally perfect property, can it be supposed, 1824. that because Congress was empowered to turn imperfect into perfect property, this newly secured

Ogden. species should occupy a superior class, and possess privileges and exemptions that were never attached to any other kind of property? The power of regulating and prohibiting the use of every kind of property must be somewhere; it is a necessary part of legislative sovereignty, and must be intrusted to some constituted authority. As to all other kinds of property, it is undoubtedly in the State Legislatures. Things patented may be dangerous or noxious; they may be generally useful, and locally injurious; such, for instance, might be torpedoes in a peaceful and commercial port; fire balloons and squibs in a populous city; though, in some places and on some occasions, they may well be useful and advantageous, or, at least, harmless. Among the curiosities in the patent office, there probably are some patented velocipedes. The Corporation of New-York, in 1819, by an ordinance, prohibited the use of any velocipede in the streets of that city. Had it not a right to do so; and could the owner of any of those patent velocipedes use them in the streets, in despite of that ordinance? The Legislature of New-York has, for many years, prohibited the drawing of any lotteries there, except what it has granted to certain public institutions, such as Union College, and the College of Physicians. By virtue of the prohibition to others, and the grant to those institutions, they have obtained an exclusive right of drawing lotteries. similar to,

Vol. IX.

20

Gibbons

1824. that, the constitutionality of which is now in con

troversy. Joseph Vanini has patented a new

mode of drawing lotteries, which is, unquestionaOgden.

bly, a great improvement, simplifying the operation, and, by completing it in less than five minutes, preventing all insurances, and many of the evils attendant on the old mode. But, could he, because his invention is an improvement and patented, insist on a right to use it, and draw lotteries in the State of New-York, contrary to its laws, and indeed, now, to the express provisions of its constitution? No. The power to prohibit the use of patented things, either generally or locally, must reside somewhere. Can Congress prohibit the use of locally injurious, but patented, things, in the waters, or the cities, or the populous towns of New-York? If not, because it has no power of regulation or prohibition, where does that power reside? If it reside, as it must, exclusively in the State Legislatures, or subordinate authorities, who but their constituents can inquire into the-motives or propriety of their exercise of that power, or the extent to which it should be carried? If the States have not that regulating and controlling power, as Congress assuredly has it not, what is the consequence? A patent can be got for any thing, and with no previous competent authority to decide upon its' utility or fitness. If it once issues from the patent office, as full of evils as Pandora's box, if they be as new as those that issued from thence, it is above the restraint and control of the State Legislatures of the Legislature of the United States—of every human autho

1824.

Gibbons

V. Ogden.

rity! I put the case of their being noxious or dangerous; but there may be a multitude of other reasons for regulating, restraining, or even prohibiting their use; of these Congress can take no cognizance. If the State governments can take no cognizance of them, no institution can; if they can take cognizance, their power is exclusive, and their exercise of it cannot be reviewed. Could Congress (incapable as it is, of itself, prohibiting the use of patented things,) pass a law, in words, that a patentee shall have a right to use his patented machine in any State, notwithstanding any prohibitory laws of that State? Would that be within the power of Congress? How, then, can implication give to the patentee the same right? If a patent can give a right to use the thing patented, in contravention of this exclusive right, it would have the same effect in contravention of any other exclusive right granted by a State. Ferries, stage-coaches, &c. all the grants respecting them, would be broken down by some patented vehicle, for, they are all, in pari materia, exclusive grants, from motives of public policy; and, having no connexion with the principle of literary property, which is the origin and the object of patent-rights, they cannot be affected by any power given to Congress. A State has the same jurisdiction and authority over its rivers and lakes, that it has over its canals. Now, if the Legislature of New-York judged it advisable so to do, could it not prohibit any boat, using some patented machinery, from navigating its western canal? If it could, why could it not make the ,

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