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1824.

Gibbons

Ogden.

But suppose, for the sake of the argument, that the States have this concurrent power, yet it cannot be denied, that if the legislation of the State be repugnant to the laws of Congress, that of the State is void, so far as the repugnance exists. In the present case the repugnance is manifest. The law of Congress declares, that all inventors of useful improvements throughout the United States, shall be entitled to the exclusive right in their discoveries for fourteen years only. The law of New-York declares, that this inventor shall be entitled to the exclusive use of his discovery for thirty years, and as much longer as the State shall permit. The law of Congress, by limiting the exclusive right to fourteen years, in effect declares, that after the expiration of that time, the discovery shall be the common right of the whole people of the United States. The law of New-York declares that it shall not, after fourteen years, be the exclusive right of the people of the United States, but that it shall be the exclusive right of this inventor for thirty years, and for so much longer as she, in her sovereign will and pleasure, may permit. If this be not repugnance, direct and palpable, we must have a new vocabulary for the definition of the word.

But it was said, that the appellant had no patent under the United States, and therefore, could not raise the question. To this it was answered, that it was not necessary that he should have a patent. The question as to the validity of the law of New-York, is raised, whenever a right is asserted under that law, and is resisted by the

-1824. Gibbons

v Ogden.

party against whom it is asserted; and that validity is to be tested, not by comparing the law of NewYork with a patent, but by comparing it with the constitution and laws of the United States.

It was also said, that there could be no repug. nance, because it was admitted, that wherever å patent from the United States appears, the patent obtained under the State law must yield to it; that the patent under the State is valid only until the patent from the paramount power appears; and that the rights derived from the different sovereigns must be found practically to clash, before the law of New-York was to give way for repugnancy. This is an insidious argument, and fraught with all the dangers which have been enumerated. For if the New-York patentee be the inventor, the law of New-York is absolute, and however unconstitutional it may be, there is no power of resistance. Besides, the argument is incorrect. To illustrate this, suppose a grant from Virginia, within the military reservation in Ohio, after she had ceded the whole territory to the United States; would the party in possession, even if a mere intruder, be bound to show.a grant from the United States, before he could resist the unlawful grant of Virginia ? But there the plaintiff would be claiming under a State which had previously ceded away the power to make such grants, which is precisely the case here, so that there need be no repugnance arising from patents. If a repugpance exist between the laws of New-York and the constitution and laws of the United States, any citizen of the United States has a night to act

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as if the law of New-York were a nullity; and the question of its pullity and validity arises, wherever, an attempt is made to enforce it.

But it was argued that the power of Congress is limited to inventors, and that the power to encourage by patents the introduction of foreign discoveries, stands clear of this constitutional grant. If it were necessary, this doctrine might be questioned. The statute of the 21st James I. c. 3. uses the same word with the constitution,

inventors;" and the decisions upon the construction of this statute might be referred to, in order to show that it has been considered as embracing discoveries imported from abłoad. But, even acceding to this doctrine, it inight be asked whether the question now before the Court had any thing to do with an art, machine, or improvement, imported from abroad? The privilege here granted by the State, is to an American citizen, who claims to be the inventor. The privilege is the reward of invention, not of importation, and this it is which brings it in conflict with the act of Congress. It is true, the law does not call him the inventor; it calls him merely the “ possessor.” But, can the constitution, and laws of the United States be evaded in this manner? If he was not the inventor, why this unjust tax which has been levied upon our admiration and gratitude? When the validity of a law is challenged for a fraudulent evasion of the rights of others, you are not bound by its own averments, but may resort to proof

a 17 Vin. 211.

1824. aliunde to establish the facts. The word posses

sor is a new and unusual word to apply to such a Gibbons

v. .case, and marks a studious effort to conceal the Ogden.

truth. He was, of necessity, either the inventor or the importer. If he was the importer, there is no conceivable reason why he should be.called by any other than that name. The Legislature of New-York, in its act in behalf of Fitch, passed before the adoption of the constitution, had no difficulty in applying the natural and appropriate name to bun. But when the final law was passed in favour of Livingston and Fulton, in 1798, the constitution of the United States, which cedes this power to Congress, had been adopted, and the laws by which that power is executed had been passed. This constitụtion and these laws used the term inventors. But the privilege was too short. The State of New-York offered better terms. The only difficulty was, to give them effect without encroaching upon that power which had been constitutionally exercised by Congress. · It would not do to call them inventors, and the device was adopted of calling him merely the posSeSSOT, which was a manifest evasion of the law of Congress.

· But it was contended, that the patent laws of the United States give no right; they only secure a pre-existing right at common law. What then do these statutes accomplish? If they do nothing more than give the inventor a chattel interest in his invention, and a remedy for its violation, he had these at common law. And if they only give him a mere right to use his invention in the States, 1824.

Gibbons

v. Ogden.

with their permission, he had that before. The case of Millar v. Taylor proves the right to have been perfect at common law. The time of enjoyment was far greater. Thompson's Seasons had been published forty years when that action was brought. If the patent and copy-right laws were merely intended to secure an exclusive right throughout the United States, and are, in fact, a limitation on the common law right, (as was contended by the respondent's counsel,) when this right has been thus secured throughout the United States, and a limitation constitutionally put upon it by Congress, can a State interfere with this regulation? The limitation is not for the adventage of the inventor, but of society at large, which is to take the benefit of the invention after the period of limitation has expired. The patentee pays a duty on his patent, which is an effective source of revenue to the United States. It is virtually a contract between each patentee and the people of the United States, by which the time of exclusive and secure enjoyment is limited, and then the benefit of the discovery results to the public. A State cannot, by its local laws, dereat this resulting interest of the whole Union.

But it was said that a State might prohibit the use of a patented machine, if it be noxious to the health of its citizens, or of an immoral or impious book, the copy-right of which had been secured. The answer to all such 'arguments was, that it would be time enough to consider such questions when they arise. The constitutional power of Congress is to patent useful discoveries. The

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