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1824. Cised under a statute of Congress, and the same

right claimed to be exercised under the State. Gibbons

The

power, as granted in the constitution, is a Ogden. limited

power, It is a clear principle, that when the means of executing any given power are specified in the grant, Congress cannot take, by implication, any other means, as being necessary and proper to carry that power into execution. This power, then, is limited: (1.) As to the persons and the objects in regard to which it may be exercised : these are, “ authors and inventors, writings and discoveries." This enumeration excludes all right in Congress to legislate on the subject of any improvement, which is not an “inyention," either domestic or foreign. It excludes also all right to legislate for the benefit of any person who is not himself the “ inventor." (2.) As to the means of executing the power, and the time during which those means may be exercised. They are by “securing the exclusive right for limited times."

The power, considered in itself, is supreme, uplimited, and plenary. No part of any sovereign power can be annihilated.

Whatever portion, then, of this power, was not granted to Congress, remains in the States. Consequently, the States have ex 'usive authority to promote science and the arts, by all other modes than those specified in the constitution, without limitation as to time, person, or object; and the Legislature is the sole judge of the expediency of any law on the subject.

But this power, though limited in Congress,

is still (as has been seen) concurrent in the States. 1824. It follows, then, from all the principles before

Gibbons laid down relative to the exercise of concurrent

Ogden. powers, that a State may exercise it by the same means, and towards the same persons and objects with Congress. A State may, therefore, grant patents and copy-rights, which would secure to the inventors and authors, the benefit of their discoveries and writings, within the limits of the State. In such cases, the citizens of other States might use the invention, or publish the book at pleasure. But if a patent or copy-right should be obtained under the law of Congress, the right under the State grant would cease, as gainst that of the United States. Suppose the ruthor or inventor does not apply for a patent or copy-right from the United States, or is willing to secure the exclusive right within any one State only, and leave the invention common in every other part of the Union; may not that one State secure the right within its own territory? This question may be answered by seeing how far Congress has exercised the power.

An examination of the different patent laws will show, that Congress has, in various particulars, omitted to exercise the entire power given to them by the constitution. Thus, by several of these laws, the right of obtaining a patent is confined to citizens, and, consequently, the power of granting patents to aliens, is left to the States. The whole power is inoperative, until Congress acts under it by legislating: and the baw itself is inoperative until some porson obtains. a patent. In every case, therefore, the power is

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1824. unexecuted until a patent is actually granted.

The State may consequently act in all cases.

But Congress bas confined its statutes to cases Ogden

of invention, as the constitution directs. Where then is the power to reward or encourage the introduction of useful machines or inventions from abroad? or, the establishment of any art, wher invented at home, and the discoverer does not apply for a patent? or, where the invention is given to the public, and great expense must be incurred to put it into use? All these things appertain to sovereignty. Congress has no power over them. The power, being sovereign, must exist somewhere, and is, therefore, exclusively in the States. If the nature of the power which is given to Congress be examined, it will be found that it confers no authority to create or grant any right or property. It is clearly founded on the presumption, that the right or property may exist, independent of the power. Thus, one of the commentators on the constitution says, “ The copyright of authors has been solemnly adjudged, in Great Britain, to be a right at common law. The right to useful inventions seems, with equal reason, to belong to the inventor "a

The adjudication here referred to, is that of Millar o. Taylor, where it was held, that the author of any book has the sole right of first printing and publishing it, but that the right was controlled by the provisions of the stat. 8 Ann, relative to copy-rights.

a The Federalist, No. 43.
6.4 Burr. 2408.

Gibbons

But, the common law of England was the law of 1824. New-York, at the adoption of the national constitution. There was no statute of New York similør to that of Ann, and, of course, the right ex

Ogden: isted there, without the security for its enjoyment, provided by that statute. The right, also, was local, and confined to the territorial jurisdiction of the State. The policy and object of the constitution was, to secure the right corextensively with the Union. Its exercise in any one State, might be affected in its operation by the pirating of books and inventions in the adjoining States, and that evil could only be corrected by the national Legislature. The right, therefore, in any one State, was imperfect only as to the security and the means of enjoyment.

It appears, then, that the power is founded on the basis of a pre-existing right of property, from the nature and origin of the right, as before stated, and from the terms in which the power itself is granted. The word. “ secure,” implies the existence of something to be secured. It does not purport to create or give any new right, but only to secure and provide remedies to enforce a preexisting right throughout the Union. This power differs essentially from the sovereign power to create and grant an exclusive right. It has been adjudged, under the English stat. 21 Jac. I. c. 3. that a grænt may be made for any invention which is new in England, though known abroad. That statute, therefore, authorizes the creation of a right

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Gibbons

V.

1824. of property in a thing imported, in which no right

of property, under the laws of England, before

existed. But the patent laws of the United States Ogden. merely extend to inventions actually made in the

United States, and not to any imported invention. The whole extent of the sovereign power, exercised by the British Parliament, on this subject, was vested in the Legislature of New-York. A part only was given tc Congress, and all the residue remains in the State exclusively.

What then is the effect of a patent? It creates no new right. It secures the patentee, for a limited time, the exclusive right to his invention; 80 that he has the same exclusive right in it, that he has in any other kind of property. His right, however, is secured more extensively than any State law could secure it. But, within the limits of the State, a patent under the local law would be just as effectual. What is the situation of the right, after the expiration of a patent? The right under the common law of the State, may be considered as perpetual. It was so ruled by the Judges in Millar o. Taylor; but it was determined in the House of Lords, that the perpetuity of the right was controlled and limited by the statute of Ann. There is no such statute in NewYork, and, therefore, the right remains as at common law. The act of Congress cannot destroy the perpetuity of a right held under the law of New-York, and which the act of Congress has only secured for a certain time, to a greater extent, and by means of more effectual remedies. The right, then, remains, at the expiration of the

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