Lynn, et. al:
To "translate" the note deriving the original statute of Title 35 USC sec.
102 it must first be clear that Title 35 of the U.S. Code was codified into
positive law in 1952 and that section 102 paragraphs (a), (b) and (c) were
based on section 31 of title 35 of the 1946 edition of the U.S. Code (the
1952 edition of the USC (published every six years) not, apparently, having
been published or available yet). The note also indicates that section 31
was derived from an 1870 statute which was then placed into section 4886 of
the Revised Statutes (1875 and 1878), which was also enacted into positive
law. Section 4886 was amended in 1930, and in 1939 and was reflected in
the early editions of 35 USC sec. 31 (including the 1946 edition of the
Code).
Unlike U.S. Code notes to amendments before or after codification, notes on
sections prior to codification (which usually come directly from the House
Committee report accompanying the bill to codify a title) do not give
details on how the section was changed by amendments. For that you must
examine the statutes and older Code sections so noted. And, although the
note to section 102 states that no changes were made to these paragraphs
except for the division into lettered paragraphs, in fact, the 1952
codifiers appear to have substantially reworded Section 4886 and old 35 USC
31 by dropping a very long phrase at the beginning that began, "Any person
who has invented or discovered any new and useful art, machine, manufacture
. . . not known or used by others", etc., and changed it to, "A person
shall be entitled to a patent unless-- a) the invention was known or used
by others", etc. Apparently the codifiers thought this change would
clarify the law as they did when they invented (following the courts and
the Patent Office practice) the first sentence of 35 USC sec. 103
concerning only patenting non-obvious differences in inventions.
In general codifiers are not suppose to change the meaning of the law or
invent new law. Whether this actually happens is a matter for legal
scholars to debate and sometime for the courts to decide. After much
litigation since 1952 no court has thought that the changes made by the
1952 codifiers were unwarranted except for interpreting that "known"
generally means "publically known".
Since the 1952 revision of Title 35 was enacted into positive law, which
also repealed prior law, it may not be that relevant that the prima facie
law (old 35 USC sec. 31) and the older positive law it reflected (Sec. 4886
Revised Statutes) has different wording.
Hope this helps. See also
http://www.llsdc.org/sourcebook/legis-Q-and-A.htm#II
Rick McKinney
Assistant Law Librarian
Federal Reserve Board
Washington, DC 20551
rick.mckinney@frb.gov
P.S. On November 9, 2004, I will be presenting a program in Washington,
D.C., sponsored by the Legislative Research Section of the Law Librarians'
Society of Washington, D.C. on "An Overview of the U.S. Code and the U.S.
Statutes At Large" which will discuss some of the above matters as well as
both publications' history, development, peculiarities, indexing, research
techniques, etc. The location of the program is still in the works.
"Merring, Lynn"
<LMerring@SYCR.c To: "'Law Lib'" <law-lib@ucdavis.edu>
om> cc:
Sent by: Subject: 35 USC 102(b)
owner-law-lib@uc
davis.edu
08/25/2004 08:23
PM
I'm trying to translate the notes section (below) from 35 USC 102.The
partner believes it should be intrpreted to mean the statute was enacted in
1946. The associate and I believe it was merely taken from a 1946 ed of the
Code but existed at least as early as 1897.
I'm having a devil of a time finding data to answer the question, so any
advice would be tremendously useful!!
Paragraphs (a), (b), and (c) are based on Title 35, U.S.C., 1946 ed., Sec.
31 (R.S. 4886, amended (1) Mar. 3, 1897, ch. 391, Sec. 1, 29 Stat. 692, (2)
May 23, 1930, ch. 312, Sec. 1, 46 Stat. 376, (3) Aug. 5, 1939, ch. 450,
Sec. 1, 53 Stat. 1212).
Thanks!
Lynn Connor Merring
Librarian
Stradling Yocca Carlson & Rauth
Newport Beach CA 92660
phone: 949-725-4023
fax: 949-823-5023
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