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1824.

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patent, in the same condition as at its commence. ment, so far as regards the laws of New-York, and within the territorial limits of that State, but cannot be asserted in other States. Even if this were not so, and it should be considered that the right becomes common, at the expiration of the patent, then it is like all other common rights, subject to the control of the municipal laws of the State. It is of the essence of sovereignty to control and regulate all common rights. The Legislature, possessing “ supreme legislative power," may destroy a common right, either by abolishing it, and prohibiting the use of it altogether, or by converting it into an exclusive right. Thus, a right of way may be common, either by land or water, and it may be shut up by law, and the use of it prohibited. So, a right of fishery, in navigable waters, is common, and it may be prohibited altogether, or converted into a several fishery. In the same manner, as to patent rights and literary productions: if, after a patent or copy-right has expired, the right to use or publish becomes common, it may be controlled by law, and turned into a private right. So that a State law may continue or extend a patent-right at pleasure.

Thus, it follows, that whether the right of the patentee remains in him, after the expiration of his patent, at common law, or whether its use becomes common to all, it is subject to the State law, in the same manner, and to the same extent, as all other rights, and may, consequently, be controlled, limited, extended, or prohibited, at the pleasure of the Legislature.

1824. But the State may control or prohibit the use of Gibbons

♡ any patented thing, during the existence of the

patent. If an inventor do not apply for a patent Ogden..

for the invention, no other man can. The right of the inventor, in such a case, remains as at common law. Every right or kind of property, created by the laws of the State, is subject to be controlled and regulated by the supreme legislative puwer of the State. It cannot then be doubted, that before a patent is obtained, the State may prohibit the use of the thing invented; either on the ground that it is mischievous in itself, or from motives of general policy, that it is inexpedient to permit it. As, if it interferes with any general interest, as a labour saving machine, which might deprive great numbers of their ordinary means of subsistence: or, if it should effect any great change in the course of business, which the Legislature might deem injurious, as it relates to the commudity. Of these questions of general policy, and of the expediency of any such prohibition, the Legislature mast, of course, be the sole judge. Thus, in the act of New-York, to incorporate the North River Stcam-boat Company, the corporation is prohibited from using any of its boats for the purpose of carrying freight. This was done to protect the great shipping interest employed in the navigation of the Hudson River. Would this exercise of power be affected by the obtaining of a patent? The object and effect of a patent is, (as we have seen,), to secure a pre-existing right, imperfect as to its means of enjoyment and its extent. The patentee obtains nothing by his grant, except an exclusive right, as it relates to the Union, instead 1824. of a right limited to the State, together with more

Gibbons complete and certain remedies to protect and enforce that right. If, therefore, he could not use

Ogden. the thing invented, against the State law, before it is patented, neither can he thus use it after it is patented, for his grant conveys no greater right than before existed. It is the undoubted attribute of all sovereignty, to regulate and control the use of all property. A thing patented, when made and put in use, is nothing more than property; and, like all other property, is subject to the control of the sovereign power, as to the right to use it. There can be no doubt that it may sometimes become important or necessary to the welfare of society, to regulate or prohibit the use of a thing patented. Congress cannot do this, or, at least, it has not done it. After the patent is granted, the power of Congress over the subject matter is exhausted. Patented things may be dangerous or noxious, either universally so in every part of the country, or locally; or, they may be useful at one time, and mischievous and noxious at another. Patented manufactures may be inji rious to the public health, though highly useful as manufactures; or they may be nuisances to private individuals and neighbourhoods, though extremely useful to the public. Can Congress provide by its laws for the abatement of a public nuisance? or give a right of action to an individual for a private nuisance? If not, these powers must reside in the States. The right to use all property, must be subject to modification by municipal law. Sic

1824.

Gibbons

Ogden.

utere tuo ut alienum non lædas, is a fundamental maxim. It belongs exclusively to the local State Legislatures, to determine how a man may use his own, without injuring his neighbour. Can a patent give rights, by which a patentee may infringe the vested rights of others? Can a patented boat be used on a ferry, the exclusive use of which has been granted by a State law ?

This argument may be illustrated by the power to secure to authors the exclusive right to their works. This power is founded on the same reasong with the other, and gives the author the same rights as the inventor. Can the author, by virtue of his copy-right, publish against the prohibition of State law ? A book may be libellous, or blasphemous, or obscene. Cannot the author be indicted and punished for it? May not a citizen maintain an action for the libel? If so, it cannot be lawful by virtue of the copy-right. If the State can punish the act of publishing, it may entirely probibit the publication. It may regulato and restram the press, so far as it is not prohibited by its own constitution. .

The laws of Congress are framed on the supposition that the power to prohibit remains in the States. By the existing statute, they have not provided that any inquiry shall be made as to the utility of the supposed invention, when the patent is applied for. There is no authority to refuse a patent, on the ground of the inutility of the invention, and in practice, no inquiry is ever made, and patents issue, of course, on making the oaths and paying the fees, even for things the most 1824.

Gibbons

Ogden.

trifting, absurd, and injurious. There is no pro-
vision for the repeal of a patent, on the ground of
its noxious or useless character. The law does
bot purport, in its terms, to give a right to use
the thing patented, against the provisions of any
State law. The act provides, (s. 1.) that if any
person shall present a petition, “signifying a de-
sire of obtaining an excluside property," &c.
then a patent shall issue, granting to the petitioner
“ 'the full and exclusive right and liberty of ma-
king, constructing, using, and vending to others
to be used,”: the thing patented. The “ exclu-
sive property" spoken of, is only the same pro-
perty that exists in any thing else, and, of itself,
gives no right to use the thing against the State
law, any more than in the case of any other pro-
perty. The words “ using, and vending to others
to be used," are inserted to make the description
of that "exclusive property" complete. The words
" making, constracting, and vending," would not
have constituted entire property in the thing, as
one might make and vend, and all the world might
use. The patentee's right of property might thus
be greatly invaded, and he would be left without
remedy, except against the “maker." The word
“ using,” in the act, must receive this limited con-
struction, or the law of Congress goes beyond the
power in the constitution. That was only to “se-
CUTE” a right,. and meant nothing more than that
a patentee should enjoy it alone, if any body was
permitted to enjoy it. But it was never intended
that the patentee should set the State laws at de-
fiance. The acts relative to copy-rights, strongly

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