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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 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
Buit this power, though limited in Congress,
is still (as has been seen) concurrent in the States.
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
a The Federalist, No. 43.
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
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