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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 per-
sons and the objects in regard to which it may be
exercised: these are, “ authors and inventors,
writings and discoveries." This enumeration ex-
cludes all right in Congress to legislate on the
subject of any improvement, wbich is not an
“inyention," either domestic or foreign. It ex-
cludes 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 exer-
cised. They are by “ securing the exclusive right
for limited times.”

The power, considered in itself, is supreme, unlimited, 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 sub

ject.

Buit this power, though limited in Congress,

1824. in

Ogden.

is still (as has been seen) concurrent in the States.
It follows, then, from all the principles before
laid down relative to the exercise of concurrent
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 dis-
coveries and writings, within the limits of the
State. In such cases, the citizens of other States
migbt 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 cuthor or in-
ventor 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 exer-
cised the power.'An examination of the dif-
ferent patent laws will show, that Congress has,
in various particulars, omitted to exercise the en-
tire 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, un-
til Congress acts under it by legislating: and the
law leself is inoperative until some person obtains
a patent. In every case, therefore, the power is

Gibbons

1824. unexecuted until å patent is actually granted.

The State may consequently act in all cases.

But Congress bas confined its statutes to cases Ogde

of invention, as the constitution directs. Where
then is the power to reward or encourage the in-
troduction 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 some- -
where, and is, therefore, exclusively in the States.
If the nature of the power which is given to Con-
gress be examined, it will be found that it con-
fers no authority to create or grant any right or
property. It is clearly founded on the presump-
tion, that the right or property may exist, inde-
pendent of the power. Thus, one of the com-
mentators on the constitution says, “ The copy-
right of authors has been solemnly adjudged, in
Great Britain, to be a right at common law. The
right to useful inventions seems, with equal rea-
son, to belong to the inventor". The adjudica-
tion bere 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 provi-
sions of the stat. 8 Apn, relative to copy-rights.

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

But, the common law of England was the law of 1824. New-York, at the adoption of the national consti

Gibbons tution. There was no statute of New-York simi- v. lar 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 co-extensively with the Union. Its exercise in any one State, might be affected in its operation by the pirating of buoks 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 Englisb 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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1824. of property in a thing imported, in which no right

of property, under the laws of England, before Gibbons

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 to 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; so 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 patept 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 bas 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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