The situation, then, as it stands to-day, is as follows:

The Revised Statutes provide1 that the inventor or discoverer of any new and useful art, or any new and useful improvements thereof, may obtain a patent therefor upon due proceedings had in compliance with the regulations prescribed.

A process-understanding the term, in its proper sense, as an act, or a series of acts, by means of which some physical change is produced in a material object— is an art, within the meaning of the statute, and as such is just as patentable as is a machine; provided (a qualification nowhere found in the statutes) it involves a chemical or other similar elemental action, such, for instance, as the action of electricity, heat, or, apparently, air mechanically set in motion. Of this there can be no question.

When a process which does not invoke any power of nature to aid in effecting the desired result may be performed by simple manipulation, although ordinarily and most successfully performed by machinery, it certainly ought to be patentable. There is no reason in the nature of things why it should not be; and to hold that it is not would surely seem to nullify, in part, the will of Congress as expressed in its duly authorized acts. Indeed, the patentability of such processes might be regarded as established by three cases,2

Union Biscuit Co., 120 Fed. Rep. 679 (see, also, 125 Fed. Rep. 601); Kirchberger v. Amer. Acetylene Burner Co., 124 Fed. Rep. 764 (affirmed, 128 Fed. Rep. 599); Chisholm v. Flemming, 133 Fed. Rep. 924. There are also a number of decisions in the Circuit Courts of Appeals. Wells Glass Co. v. Henderson, 67 Fed. Rep. 930; Amer. Fibre-Chamois Co. v. Buckskin-Fibre Co., 72 Fed. Rep. 508; Phil. Creamery Supply Co. v. Davis & Rankin Bdg. & Mfg. Co., 84 Fed. Rep. 881; Chicago Sugar-Refining Co. v. Charles Pope Glucose Co., 84 Fed. Rep. 977; Streator Cathedral Glass Co. v. Wire-Glass Co., 97 Fed. Rep. 950; Chinnock v. Paterson, P. & S. Tel. Co., 112 Fed. Rep. 531; Dayton Fan & Motor Co. v. Westinghouse Elec. & Mfg. Co., 118 Fed. Rep. 562; Westinghouse Elec. & Mfg. Co. v. Stanley Instrument Co., 133 Fed. Rep. 167; Kahn v. Starrells, 135 Fed. Rep. 532. The subject has also been carefully considered by the Court of Appeals for the District of Columbia in two cases appealed from the Patent Office. In re Weston, 17 App. D. C. 431; In re Cunningham, 21 App. D. C. 28. And by the Commissioner of Patents. Ex parte Creveling, 111 O. G. 2489.

It may be stated that since the decision in the Westinghouse Case was handed down, the lower courts very generally have sustained patents for that class of processes the patentability of which was there left as an open question, while they quite uniformly have held unpatentable, as the mere function of a machine, those processes which apparently were identified with the operation of a machine, either because the steps of the process were, by express limitation, to be performed by means of a particular mechanical element or combination, or because the process could be performed in no other known way than by a machine.

1 § 4886.

2 In Eames v. Andrews, 122 U. S. 40, the claim sustained was for "the process of constructing wells by driving or forcing an instrument into the ground until it is pro

in which claims for processes apparently belonging to this class were sustained, were it not for the doubt raised by Risdon Locomotive Works v. Medart and the later statement, in Westinghouse v. Boyden Air Brake Co., that the question is still to be regarded as open. It may confidently be expected, however, that, when a case presents itself, the Supreme Court will hold, as it certainly seemed to intimate in the Westinghouse Case and as the lower courts have since held quite generally, that a process of this class is the proper subject for a patent.

The further proposition, that where a process is simply the function or operative effect of a machine the authorities are conclusive against its patentability, is correct only when properly understood. If the term process is taken in the secondary or subjective sense defined in Corning v. Burden, as representing merely, or as synonymous with, the function of, or the effect produced by, a machine, then indeed the proposition is conclusively established, both by the authorities and as a matter of principle. In this case, however, the process is not a process at all, but simply an abstraction, and for that reason unpatentable. If it means that a process, or art, is not patentable where it is new only in the sense that it is performed, better perhaps than before, by the operation and as the function of a newly invented machine, then it coincides with the facts of, and is established by, Risdon Locomotive Works v. Medart. In that case the process was not patentable because it was old and the whole invention inhered in, and was limited to, the particular means devised for carrying it out, as was apparently the ratio decidendi in Busch v. Jones. But this is as far as the court has yet gone. If the proposition means anything more—if, for instance, it means that a true process is not patentable, although altogether new, where it is seemingly identified with the function

jected into the water without removing the earth upward, as it is in boring, substantially as herein described."

In Topliff v. Topliff, 145 U. S. 156, the patent contained two claims, both of which were sustained, the first being for "the herein-described method of equalizing the action of springs of vehicles and distributing the weight of the load," namely, by "connecting together by a rigid rod the two pivoted links upon the clips employed on the hind axle."

And in Hoyt v. Horne, 145 U. S. 302, the claim on which a decree for the complainant was directed was as follows: "The improvement in beating rags to pulp in a rag engine having a beater-roll and bed-plate knives, consisting in circulating the fibrous material and liquid in vertical planes, drawing the same between the knives at the bottom of the vat, carrying it around and over the roll and delivering it into the upper section of the vat, substantially as described."

or operative effect of a machine because it can be performed in no other known way than by that particular machine it not only does not find support in any actual decision of the Supreme Court, but is unsound in principle.

As stated in Risdon Locomotive Works v. Medart, the proposition is, at best, misleading. It was not properly applicable to that case, which could, and should, have been decided upon other grounds; and two of the justices who participated in that decision have since made it clear that they do not agree with the reasoning on which the decision is made to rest. Perhaps there were others. It is earnestly to be hoped, not only that the court will not extend the doctrine beyond the facts of that case, but will, as it alone can do, remove all the confusion which has resulted therefrom by reaffirming the broad principles of law governing the patentability of processes, so clearly set forth by Mr. Justice Bradley, and by placing the invalidity of patents for processes which are in fact old distinctly upon the correct statutory ground.

The patentability of a process should, under our laws, be determined solely by ascertaining whether such process, as distinguished from the means by which it is to be performed, is new and useful, and amounts to an invention or discovery. If it meets this test successfully, the process fulfills every requirement, and is the proper subject of a patent.

NEW YORK.

William B. Whitney.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

THE LAW SCHOOL. No changes are to be recorded this year in the personnel of the faculty except in the extra courses. Mr. Charles J. Hughes, Jr., of Denver, Colorado, will give a course on the Law of Mining and Irrigation; Mr. Jeremiah Smith, Jr., son of Professor Smith, will conduct the course on Massachusetts Practice; and Professor Winter's absence in Europe will leave Mr. Willard in charge of the courses on Forensic Discussion and Voice Training. Professor Strobel and Assistant Professor Westengard are still on leave of absence in Siam. The changes in the curriculum are few. Assistant Professor Warren is conducting the entire course of Property II, instead of dividing it with Professor Beale, as last Constitutional Law will again be given by Professor Wambaugh, but as a whole course this year. Both Quasi Contracts and Admiralty are announced, the former to be conducted by Dean Ames, the latter by some one not yet determined upon. Dean Ames has prepared a new edition of his Cases on Pleading, and Professor Williston of his Cases on Sales, both books being in use this year in their respective courses.

The enrollment at the School on October 15th showed a decrease over that of last year. Statistics will be given in the December number.

CONSTRUCTIVE EVICTION. The term eviction, originally confined to the dispossession of the tenant by process of law, was soon extended to any expulsion of the tenant by the landlord from actual possession of the demised premises. Later the courts recognized that certain acts of the landlord, while not depriving the tenant of actual possession of the prem

ises, did prevent his possessing the beneficial use of them. To cover these cases the doctrine of constructive eviction was established, allowing the same remedies as actual eviction. The determination of what acts amount to constructive eviction must depend on what rights rest in the tenant as against the landlord, and what acts of the landlord so violate these rights that the remedies furnished for actual eviction suspension of rent and liability of the landlord in damages - seem desirable. By a lease, the tenant acquires, in general, a right as against the landlord to the possession of the premises in their present condition. Hence, when the landlord does any act on the premises leased, or even as owner of those premises, which substantially injures them for the tenant's uses, the remedies for actual eviction appear necessary, and constructive eviction is held to have taken place. The same reasoning applies where easements leased as part of the premises are disturbed by the landlord ;* also where water, artificial light, or power hitherto transmitted to the leased premises from without is cut off by the landlord, since the use of the water, light or power is a privilege which constitutes a part of the demised premises."

8

If, however, the landlord owns also adjacent premises and by virtue of his ownership of them does acts which substantially impair the tenant's use of the leased land, the courts seem to have established a distinction." Assuming that, in general, a lease gives to the tenant only rights connected with the land leased, and does not impose purely personal obligations on the landlord, they reach the conclusion that if a person who has leased to a tenant one plot of ground, does an act solely as owner of adjacent premises, which injures the tenant's use of his land but does not violate a general property right, no right of the tenant has been infringed. Thus the courts have held that no constructive eviction takes place where the erection of a building on the landlord's adjoining lot shuts off the tenant's light and air." The Washington supreme court recently reached the same result in a case where the landlord of premises leased for a saloon, through his ownership of adjoining premises, prevented the tenant from obtaining the necessary license. Kellogg v. Lowe, 80 Pac. Rep. 458. When, however, the act of the landlord, as owner of the adjacent lands, works substantial injury and violates a general property right of the tenant, that is, if the tenant would have a right of action against the adjacent owner, were he a third person, some courts have held it a constructive eviction. On the reasoning of the cases just discussed, this result could not be reached, since the landlord only can evict, and the landlord, as such, has done no injurious act. These decisions can perhaps be accounted for by the fact that the courts were more inclined to grant the remedies incident to eviction, where if allowed they would be merely alternative to those called forth by an unquestioned legal wrong.

1 Dyett v. Pendleton, 8 Cow. (N. Y.) 727; Edgerton v. Page, 20 N. Y. 281.

2 Cohen v. Dupont, 1 Sandf (N. Y.) 260; Skally v. Shute, 132 Mass. 367.

3 Grabenhorst v. Nicodemus, 42 Md. 236.

The People ex rel. Murphy v. Gedney, Ic Hun (N. Y.) 151. See Patterson v. Graham, 40 Ill. App. 399. Cf. Williams v. Hayward, 1 E. & E. 1040.

5 Germania Fire Insurance Co. v. Myers, 4 Lanc. Law Rev. 151; Brown v. Holyoke Water Power Co., 152 Mass. 463.

6 See Doyle v. Lord, 64 N. Y. 432, 439.

Palmer v. Wetmore, 2 Sandf. (N. Y.) 316; Solomon v. Fantozzi, 86 N. Y. Supp. 754.

8 Dyett v. Pendleton, 8 Cow. (N. Y.) 727; Jay v. Bennett, 4 Col. App. 252.