§ 86. General Principle. The right the author's mere communication of protects against the reproduction, by the product by reading or action; prooral reading, or by dramatic action, or vided the communication has not by both, or by the kinetic pictures of amounted to such a publication of it the action, of the ideas and the words as would abandon the right for puror action of an intellectual product poses of printing." existing in any form capable of such reproduction.1 (2) This right may also be protected additionally by registration pursuant (1) This right is not abandoned by to law.3 Topic 4. Diversion of the Relation by Multiplication of Invented Industrial Products SUB-TOPIC A. TRADE SECRETS (AT COMMON Law) § 88. General Principle. A person has an Interest in the formation and maintenance of such profitable relations as can be gained for industrial products whose idea is created by him and embodied in reproducible forms. § 89. Publication (Disclosure of Secret). If the inventor puts out his product or services for sale to customers, this is an abandonment of the right, in respect to any person who by inspection of the product or services is able to discover the idea.5 But it is not an abandonment as to (1) any person permitted in confidence to learn of the idea; (2) nor any person learning of it by fraud or violence." The Right protects against any loss of a profitable relation caused by the use of an industrial idea, invented by the plaintiff and either embodied in a material product or used to make an industrial product or perform an in- § 90. Infringement. (1) The right dustrial service, so that a third person's is violated by making any product or acceptance of the defendant's product | rendering any service by means of the or service thereby diminishes the idea, if learned unlawfully, i. e. conpatronage for the plaintiff's product trary to the rule of § 89. or service.4 This right, in that aspect which protects customers' name-lists and business-methods, would also be included (it would seem) under the broad principle of § 94, post, in its industrial aspect. But the present narrower right was recognized before the other. Moreover, its relation to the statutory patent-right has caused it to be limited by the doctrine of publication as an abandonment; hence the present right should not be regarded as the equivalent of that of § 94. 1 Tompkins v. Halleck, No. 212; 2 Tompkins v. Halleck, No. 212; Statute, No. 198. Peabody v. Norfolk, No. 216; Cott-A-Lap Co., No. 217. Peabody v. Norfolk, No. 216. 6 Stone v. Goss, No. 217. 7 Hartman v. Park, No. 228. 218. The acquisition of such knowledge with intent so to use it will entitle to injunctive protection. The acquisition of such knowledge by a commercial rival is presumptive of such intent.8 (2) The right is not violated by buying or selling the product after it is once lawfully made; but such buying or selling may be a violation of the General Societary Right (ante, § 52) to have contracts kept by persons contracting not to sell it." Harper v. Kalem Co., No. 214. Stone v. Goss, No. 217; Wiggins' Sons Co. v. Stone v. Goss, No. 217; contra, semble, Wiggins v. Cott-A-Lap Co., No. • Hartman v. Park, No. 227. SUB-TOPIC B. REGISTERED (PATENTED) INVENTIONS (BY STATUTE) § 91. General Principle. On the tected by statute, are so conditioned, principle of § 55, ante, the plaintiff's yet both rights may best be conceived interest in a material product is further of as a common-law right to which a protected by a prophylactic right (ante, has been given by statute. conditional but additional protection §7), so as to relieve him partly from the difficulties of establishing his authorship of the product and the loss of specific customers by the defendant's multiplication of it. 1 But the product is entitled to registration on the following conditions only: (1) It must involve inventiveness, i. e. not merely manual dexterity in doing or using something, but mental reflectiveness in conceiving an idea as to doing or using it.3 § 92. Registration. The registration; in pursuance to law, of the plaintiff's industrial product, dispenses thereafter with other proof of his invention of the It is sometimes said that a patent-product and of the existence of patronright is a "monopoly." Certainly it age for it. is; but no more so than any propertyright, or than any other of the foregoing rights to societary relations. A man's right to his horse is that no one else shall touch it (post, § 124), plainly a monopoly of its use. A man's right to his child is that no one shall take or hurt it, also a monopoly. A merchant's right to his customers (ante, § 52) is that no one else shall interfere with them by fraud or violence, a monopoly, as far as it goes. The monopoly of a patent-right is no (a) novelty as to other ideas, i. e. different from these in kind. In merit, variant in its idea from ideas already it rises quite as high as the property-known, and not merely variant in the right; for the invention which gives rise to this Right is as meritorious as material or mode used; and the labor or appropriation which starts the property-right. The innuendo which attempts to stigmatize patent-right as a monopoly is baseless. Moreover, the commercial exploitation of patent-rights by unmeritorious assignees is no greater than the abuse of property-monopolies by unmeritorious grantees or appropriators who did not create the valuable thing. The elements of this Right, provided by statute, are the following: (1) registration of his product; (2) subsequent multiplication by the defendant. It is sometimes said that a patentright is exclusively the creation of statute. This must be doubted, on principle. The analogies of trademarkright and of copyright demonstrate the error. It would have been possible to protect inventions (trade-secrets) cumulatively by mere registration, without conditioning the statutory right on the abandonment of the common-law right. Thus, although in law to-day both the copyright and the patent-right, as pro 1 Mr. Robinson, in No. 220. (2) It must involve novelty, i. e. the idea must be one not before known; and this novelty must be (b) novelty as to other persons, i. e. not already invented by another person." (3) It must be embodied in the outward tangible form of some specific mechanism of human construction, i. e. not merely a principle of the action of force, whose inherent operation has been discovered." the inventor has not only discovered But this requirement is satisfied if a principle, but has also invented a process of applying it with specific mechanism; and the right will then apply to the process." In this requirement, the statutory patent-right is distinctively narrower than the common-law. trade-secret right (ante, § 87); and on reasonable grounds of policy: first, because it is unwise to spoil the spirit of pure science by conceding a commercial interest to its students; secondly, because the system of public registration for identifying inventions is only Nos. 219, 228. feasible for those having a tangible use or on sale for more than two years mechanism. prior to registration.2 (4) It must have public utility, i. e. not be inherently mischievous or illegal in its purposes.1 § 93. Infringement. (1) The right is violated by any one who (a) makes or (b) uses or (c) sells the invented (5) It must not have been in public product.3 Topic 5. Right to Protection of Ideas in General § 94. General Principle. Even where an invented idea is not embodiable in matter, graphically or mechanically, so as to receive the protection of the foregoing Rights under § 78 (Copyright) or § 88 (Patent-Right), and consists in an exercise of thought and skill creating or transmitting an idea or fact or sound which is intrinsically useful to and usable by others irrespective of the verbal or physical form of its expression, and is communicated or recorded by any means whatsoever, the Right protects against any loss of profitable relations caused by any use of such ideas or facts or sounds, by means of their multiplication or otherwise. This right, it would seem, as now recognized, is large enough to have included stage-right and music-right (ante, § 86); but those rights were independently worked out, and the present phrasing notes the law as called for by more recent forms of authorship. SUB-TITLE (III): RIGHTS TO ONEROUS RELATIONS § 95. General Principle. [A person has an Interest in any relation with another person which would compel him to incur a pecuniary disadvantage. The Right protects him against any loss, by way of expense incurred by him in discharging the obligation of such a relation, when it has been created or made more burdensome for him.] The right applies in the following classes of cases: § 96. Burden of Domestic Relation. The right protects against any loss by expenses incurred in fulfilling the obligation of a domestic relation when a member of the family who is entitled to the plaintiff's support has been corporally injured by the defendant's act. $97. Burden of Contract Relation. The right protects against any loss by expense incurred in fulfilling the obligation of a contract with a third person, when the person, premises, or chattel which is the object of the contract has been so harmed by the defendant's act as to cause additional expense in performing the contract. $98. Creating a Burdensome Relation in Self-Protection. The right protects against loss (1) by incurring an obligation to pay or (2) by expenses paid, in self-protection against the consequences of harm caused by the defendant to the plaintiff's (a) person or (b) property." [This includes fees of counsel in litigation to secure redress.®] TITLE C: PROPRIETARY RIGHTS § 100. Analysis of Proprietary Rights | serving his desires by means of his (a) A person has an Interest in any physical control of it. natural object regarded as capable of 1 National A. D. Co. v. Lloyd, No. 225. 2 Statute, No. 220. (b) The Interest may vary between United Tel. Co. v. Sharples, No. 226; Hartman v. Park, No. 227. National Tel. News Co. v. Western U. Tel. Co., No. 208; Dodge Co. v. Construction I. Co., No. 209; Fonotipia v. Bradley, No. 211. Contra, Haskins v. Ryan, No. 210. Cumming v. Brooklyn C. R. Co., No. 229. Anthony v. Slaid, No. 230; Cue v. Breeland, No. 231. 7 Mitchell v. Burch, No. 232. 8 Wittich v. O'Neal, No. 233. of Property (so-called) then proceeds (in our traditional usage) to define the varieties and their consequent rules. two extremes. Either it may consist in the complete exclusion of all other persons from any Interest in a specific object; this is the system of Maxi- (c) Natural objects, as thus permum Interest, or Exclusive Individual mitted by the State to become an obProperty. Or it may consist in the ject of an exclusive individual Right, are exclusion of all other persons' Interest in every legal system classified under to such extent only as leaves the object two general heads, variously known as usable in a degree sufficient for some Movable and Immovable, Real and sustenance of the first party; this is Personal, etc. Systems differ both in the system of Minimum Interest, or the objects placed under one or the Communal Property. No State sanc- other of these heads, and in the scope tions either extreme exclusively. By of the details of the Right conceded State enactment or voluntary act of the for various objects. Such variations parties, numerous species of Interests might be classed under either Torts or and Rights ranging between these Property; but practically it is necesextremes are found in every legal sary, for understanding the historic system, e. g. easements, leases, county rules of our law, to deal with some of highway, city buildings. Neverthe- them in both departments. less, every legal system will usually be marked by its adoption of one or the other extreme as its fundamental feature; the intermediate species will then appear as exceptions or variations from its general principle. All legal systems now in existence, including the Anglo-American, have as their basis the system of Exclusive Individual Property. Hence, the scientific study of its property-rights begins by defining the right of Property in the generic or abstract form of the exclusive individual right, so far as the State permits it; and then defines the intermediate varieties or subdivisions of this right and the consequent detailed rules. (d) The acquisition, transfer and extinction of the Right fall in the department of Property. Hence the law of Torts, in defining the scope of the Right, assumes that conditions for acquiring the Right have been fulfilled; i. e. that the person has by occupation, inheritance, or otherwise, duly acquired the Right; and it seeks only to define the legal consequences of one's having the Right. Hence, the presumption of Right from possession, and kindred rules of procedure, are without its scope. § 101. Classification of Topics. The definition of a Proprietary right involves two parts. (1) It describes the kinds of natural objects which are included in the Interest. (2) It describes the kinds of harms to them against which the Right protects Thus the law of Torts, being concerned with the fundamental rights and duties (ante, § 10), defines the generic Proprietary Right. The law the owner. SUB-TITLE (I): REALTY Topic 1. Kinds of Natural Objects Included. § 101. Land-Surface and Appurte- | for habitation and completely availnances. The property-right in realty able for economic use as a fixed headincludes the surface-area of the land. quarters of individual activity. The following elements are thus It also includes such appurtenant elements as serve to make the land safe included: SUB-TOPIC A. STATIONARY ELEMENTS § 102. Superjacent Space. The space without limit as to distance upsuperjacent to the land is included, wards.1 1 Pickering v. Rudd, No. 235; Kenyon v. Hart, No. 236; Smith v. Smith, No. 237; Hannabalson v. Sessions, No. 238. § 103. (1) The right also protects the superjacent space from the intrusion of such substances as may, by impairing the health of the owner, thus violate the right of Corporal Integrity (ante, § 12), or by impairing the use of his bodily senses thus violate his right of Sensory Comfort (ante, § 18); But inasmuch as such harm is a mixed harm, the details of the right protecting against it are treated under Title D (post, § 140), being known by the term Nuisance. SUB-TOPIC B. § 104. Subjacent Space. The space subjacent to the land is included, without limit as to distance downwards.' The right in this aspect protects merely against an intrusion into the lower soil or a removal of it. But an act which causes the surface to fall is a violation of the main right (ante, § 101). In that aspect, the chief legal question is whether there is a communal right limiting the individual right by way of easement. When an adjacent owner causes the subsidence by digging on his own land, it may perhaps be said that the excuse, if any, is a part of the inherent limitation of the generic property-right (post, Book by a grantee of subjacent soil, it is III, Title C). But when it is caused rather a question of the implied extent of the grant in partitioning communally the respective details of the right between the parties.* AFFLUENT ELEMENTS § 105. Air. The right [does not] include[s] the normal flow of air to the premises.5 Courts and Legislatures here differ. But whenever the right has been recognized, a communal right for neighbors has also been conceded; so that the obstruction of air by the ordinary use of adjacent premises for building is justifiable, on the principle of Book III, Title C, i. e. the interruption of the air is a violation of right only when done to serve no useful purpose and solely in malice. Where the right is not recognized as inherent, it may of course be acquired by grant or by prescription as an easement in the other land. The sending in of noxious elements, such as gas or smoke, is a different thing from the interruption of the flow of air, and is covered by the doctrine of Nuisance (ante, § 102). Courts and Legislatures here differ; this and the preceding element are not distinguished in the law; see the note to § 104. For the nature of both these rights, see the note to § 106. § 107. Surface Channel-Waters. The right includes stream-right, i. e. the normal flow, in quantity and quality, of water running naturally from other land in a channel through or alongside of the premises. But as between owners of different premises served by the same stream, the right is communally apportioned, as to quantity of water, so that the upper riparian owner is limited to an amount reasonable in view of the common needs.8 Thus the right is seen to be not identical in nature with the main property-right (ante, § 100), i. e. it is not an interest that the particles of light-water, while up stream, shall not be touched by other persons; but is analo § 106. Light. The right [does not] include[s] the normal flow of waves to the premises." 1 Pickering v. Rudd, No. 235, and cases supra. 2 Mr. Kuhn, No. 239. 3 Messrs. Blanchard & Weeks, No. 240; Chartiers B. C. Co. v. Mellon, No. 241. ♦ Chartiers B. C. Co. v. Mellon, No. 241. 5 Letts v. Kessler, No. 243. Aldred's Case, No. 242. 7 Letts v. Kessler, No. 243. 8 Mason v. Hill, No. 244; Tyler v. Wilkinson, No. 245; Webb. v. Portland Mfg. Co., No. 246. |