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Ramon A. .Klitzike * Historical Background of the English Patent Law Journal of the Patent Office 41(9) 1959, 615-650 |
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Introduction The English were not the first to grant patents to inventors but they were the first to develop a lasting patent law. The patent system of the United States, originating at a time when the English law was in full flower, drew heavily from it and might never have come into being at all had the English law not been what it was in the eighteenth century. By this time the English lawyer had been victorious over the old monopoly abuses and had provided the fathers of our country with history from which considerable profit could be taken. Knowing the problems England had had it was an easy matter to avoid the pitfalls of a. monopoly system and create a body of law which began where the English law had left off. Because we interpret and apply our patent law in the light of its history and because this history extends back to the beginning of the English law, there is value in the study of the early efforts of the English people. To fully know our patent law we must be familiar with its origin. The basic truths found by the English 400 years ago are still valid today and should continue to influence us in the interpretation and application of our law, even though it has become greatly refined and perfected. It is, therefore, an object of this paper to illuminate some of these dusty truths from the Elizabethan era and it will seem that, although the years have clouded our view of them, they are substantially the same today as they were then.
I. THE LETTERS PATENT A Letters Patent for an invention is a monopoly. In the United States the monopoly is : … a. grant to the patentee, his heirs or assigns, for the term of seventeen years, of the right to exclude others from making. using, or selling the invention throughout the United States. [1]' * Associate Professor of Law, Texas Southern University, Houston, Texas. Member of the New York Bar. 1. The Patent Act § 154, 66 Stat. 804 (1952), 35 U. S. C. § 154 (1952). 615 In England it is the “sole privilege” to “make, use; exercise and vend” [2] the invention for sixteen years. [3] The United States inventor receives a negative right, the English a positive one. The ancient Greeks originated the term “monopoly.” It is derived from… (alone) and… (to sell) and was first used by Aristotle in 347 B. C. [4] For the purpose of this paper, a monopoly will mean a privilege consisting of the exclusive right to carry on a. particular business or trade, manufacture a particular article, or control the sale of the entire supply of a particular commodity. [5] We need deal here only with monopolies granted by the sovereign. A grant of a Letters Patent was a personal and direct grant of some dignity, office, monopoly, franchise or other privilege by the English sovereign through the exercise of the royal prerogative and was recorded on the Patent Rolls in the Record Office. The documents received by the patentee were called Letters Patent, the term being derived from the Latin literae patentes or “Open Letters” because they were addressed, not to particular individuals, but “To all to whom these presents shall come.” The documents were traditionally sealed so that they could be read without breaking the seals, while “Letters Close” could not be read without first breaking the seals. [6] This paper will be concerned with the history of Letters Patent for inventions. It will be necessary, however, to consider monopoly grants other than those for inventions to fully understand what kind of a privilege the inventor received. A short summary of some of the more important early developments outside of England before the beginning of English patent law will be helpful. 2. 16 Halsbury's Statutory Instruments 121 (1953). 3. The seventeen year term in the United States dates from the date of issuance of the patent whereas the sixteen year term in Great Britain dates from the date of the filing of the complete specification. 4. Aristotle, Politics, bk. I, chap. XII, 48. 5. Black's Law Dictionary 1158 (4th ed. 1951). 6. Gomme, Patents of Invention 1 (1946). 616 II. EARLY MONOPOLIES OUTSIDE OF ENGLAND The First Monopolies Athenaeus, writing in the third century A. D., in his “Banquet of the Learned,” quotes Phylarchus, the historian, as saying that in about 500 B. C. in Sybaris, a Greek colony famous for luxurious living and self-indulgence, if any confectioner or cook invented a peculiar and exclusive dish, no one else was allowed to make it for a year. [7] In. A. D. 337 the Roman Emperor Constantine decreed that artisans of certain trades who resided in cities were exempt from all civil duties, especially if their leisure hours were employed in perfecting themselves and instructing their sons. Among the artisans so privileged were the locksmiths, chariot makers, engineers, workers in lead and manufacturers, which groups probably included most the inventors of the time. [8] While this was no monopoly grant, it was the grant of a privilege and a recognition of the value of rewarding those working in the arts and sciences. The Romans were, in fact, distasteful of monopolies. The Emperor Zeno, in A. D. 483, made it clear that there was to be no monopoly of any kind over clothing or food, regardless if it was procured under a rescript of an emperor. [9] The Dark Ages provide us with no allusions to monopolies but in 1105 a diploma was granted to a Norman 7. Athenaeus, “The Deipnosophists,” 3 Bohn's Classical Library 835 (1854). 8. Code of Justinian, X, LX IV, 1; 15 Scott, The Civil Law 155 (1932). The following artisans were listed in the edict: Architects wood carvers glaziers physicians gilders workers in lead painters workers in stucco mirror makers sculptors silversmiths ivory workers workers in marble brokers furriers manufacturers of founders fullers chests or beds manufacturers carpenters locksmiths engineers • plasterers chariot makers potters and ten other trades, builders (masons) goldsmiths not translatable In A. D. 344 surveyors, geometers and architects occupied in dividing land and other property and who took measures, established boundaries, conducted or removed water were added to the above list. Code, X, LX I V, 2. 9. Code, IV. LIX, 1. 617 Abbot by Count William of Mortagne, authorizing him to establish windmills in a certain area. This is the first historical mention of windmills. [10] Benjamin of Tudela, who travelled around Europe and the Near East about 1160 to 1173, in his “Itinerary” reported that the King of Jerusalem granted annual fees to certain dyers and at that time dyeing consisted of trade secrets. [11] In 1236 the English King Henry III, who also ruled western France, confirmed a grant by the Mayor of Bordeaux to Bonafusus de Sancta Columbia under which he and his fellows alone in Bordeaux were permitted to make cloths of many colors after the manner of the Flemings, French and English for fifteen years, after which time anyone could make the cloths and Bonafusus was to have no advantage. [12] These early grants of privileges were not necessarily for inventions and did not all result in monopolies. One of the first real patents for invention was granted by the Signoria of Florence to Fillippo Brunelleschi, the great engineer and architect of the magnificent cupola of the cathedral of Florence. The patent privilege was given in 1421 for three years for a device for transporting heavy loads on the Armo and other rivers. The work of anyone imitating his invention was to be burned. [13]
Venice The world's first patent law developed in the early Republic of Venice. Around 1400 she largely monopolized the trade between Europe and the rest of the world and possessed great power and wealth until the discovery of the sea route to the East around the Cape of Good Hope. It is known that Venice maintained a special privilege fund in 1332 from which a payment was made to one Bartolomeo Verde, who promised to build a windmill within six months of the payment. Other payments from this fund were repeatedly made in the fifteenth century 10. Frunkin, The Origin of Patents, 27 J. P. 0. S. 143 (1945). 11. Id. at 143. 12. Gornme, Patents of Invention 5-6 (1946). 13. Id. at 6. 618 to persons claiming knowledge of millwork and ship design and probably to many others. [14] In 1469 a Venetian patent of monopoly was granted to John of Speyer, a German printer who established himself on the Lagune. John's patent states that it was usual to grant such monopolies. [15] After this time patents were granted systematically and the custom was confirmed by a written pronouncement in the nature of a statute or administrative decree in 1474 in which it was said that : Privileges of ten years are generally promised to the inventors of new arts and machines.[16] A substantial number of patents and copyrights were granted in Venice between 1500 and 1550. In 1568 Andrea Brugone obtained a. patent for printing in red and black and Francesco Zamberlin received a. patent in 1572 for certain types of mirrors. Many other grants were made and decrees were obtained enforcing them. As Venice declined in power skilled artisans and inventors, many of them expert glass makers, began migrating to other countries. Most of them went to France but, after the massacre of St. Bartholomew in 1572 and the subsequent extreme religious intolerance, many of them migrated to England, Holland and Germany. [17] Being familiar with the Venetian patent system they were eager to obtain similar protection in their new homelands. One of the most interesting patents granted by Venice was that to Galileo in 1594. From 1592 to 1610 Galileo was Professor of Mathematics at Padua., which was then part of the Republic of Venice. He developed a machine for raising water which was successfully operated in the garden of the Contarini in Venice. A patent for the device was granted, giving Galileo the sole right to make or use such a machine for twenty years. Infringers would lose their machines and be required to pay a fine of 300 ducats. [18] 14. Prager, A History of Intellectual Property From 1545 to 1787, 26 J P. 0. S. 711 (1944). 15. Id. at 715. 16. Id. at 750. 17. Id. at 715-20. 18. Federico. Galileo's Patent. S J. P. 0. S. 576 (1926). 619 Other countries also granted a few patents about this time. In 1545 the Emperor Charles V of Germany granted one Hans Hedler a twelve year patent for wind and water mills and other grants are known to have been made at the same time in the Saxon and German states. Patents are also recorded in Antwerp, Holland and Spain in the sixteenth century. [19]
France The French patent law developed about the same time as the English law, although the English were subsequently much more successful industrially with their law. French inventors were officially encouraged in about the same manner as they were in Venice. [20] In 1536 the French Consular Government of Lyons, with the consent of King Francis I, granted Etienne Turquetti from Piedmont a privilege for the production of silk. Turquetti obtained safe conduct for his workers, who came from Genoa and other countries, and also received the right to collect royalties from silk makers in Lyons who established there after Turquetti. His privilege also made him exempt from taxes and under it he could obtain loans and other aid. The privilege was non-exclusive and hence non-monopolistic. [21] The first monopoly patent in France was granted to another Italian, Theses Mutio, of Bologna, in 1551 for the art of Venetian glass making. It was to run for ten years but it was registered by the Parliament de Paris for only five years. In the same year a French inventor, Abel Foullon, was granted a patent for a range finder which was also to run for ten years. [22] The French King Henry II felt at this time that the inventor should fully disclose his invention so the public could benefit from it when the patent expired and Foullon was required to prepare what became printed in 1555 as the first patent specification. In 1557 Henry II issued an exclusive right to one Gran- 19. Gomme, op. cit. supra note 12, at 8. 20. Prager, op. cit. supra note 14, at 711-21. 21.1d, at 722-3, 751. 22. Id. at 723. Gomme, op. cit. supra note 12, at 8. 620 ion, a printer, who designed “Caractere de civilite” type, a kind of printing type which is no longer used. Aldus Manutius had earlier received a Venetian patent in 1502 for a. new slanted type still in use today, called italic. [23] Between 1550 and 1600 French patents of monopoly were granted on an average of one every two years. In England at this time about one monopoly patent per year was granted and possibly even more. The smaller number of patents in France is probably due to the fact that fewer inventors cared to migrate to that intolerant kingdom and there was a thorough and continuous parliamentary interference with the free granting of undeserved monopolies. [24] Also, the French monarch, although having less power than the English Crown, actively participated in industry and was reluctant to grant monopolies to private individuals. [25] During the Middle Ages, although probably not in the sixteenth century, the industrial progress of France was superior to that of England. Its political, social and economic integration, however, had not progressed as far and guild regulations, which were contrary to a national monopoly system, were strengthened. Monopolies to private individuals were thus discouraged in France. Systematic granting of patents in France did not occur until the end of the sixteenth century and this may well have been in imitation of the English system. [26]
Guilds A summary of the history preceding the English patent law would not be complete without reference to the early guilds. During the Middle Ages mercantile enterprises were extremely hazardous. As towns arose in the eleventh century merchants began to protect themselves by forming guilds, obtaining by charter the sole right of regulating trade within a town. They could thus monopolize all trade, including not only the sale of goods but also all 23. Frunkin, op. cit. supra note 10, at 145. 24. Prager, op. cit. supra note 14, at 724. 25. Price, English Patents of Monopoly 5 (1913). 261bid. 621 manufacturing. These were group monopolies and were never granted to one person. [27] Within the guild there was free competition in selling and manufacturing but competition from outsiders was prevented. Trade was carefully regulated and price maintenance was practiced. Occasionally the guild members abused their monopoly power and control by local government authorities was necessary. [28] The most powerful of the merchant guilds of the Middle Ages was the Hanseatic League. It was founded in trading centers near the coasts of the Baltic Sea about the beginning of the thirteenth century. By the end of the fourteenth century sixty-four principal cities were members and at one time there were eighty-five city members. London was the only English port admitted to membership [29] but most English commerce was controlled by the League until the fifteenth century. In 1428 the League equipped two hundred and forty-eight ships carrying 12,000 soldiers against Eric of Denmark. [30] With the diversification of trades in the twelfth century craft guilds began to be formed. A craft guild usually comprised all the artisans in a single branch of industry in a certain town. During the fourteenth century the cloth craft guilds became quite powerful by obtaining monopolies from the sovereign. Gradually the single merchant guild in a town was replaced by separate craft guilds for each of the various trades and handicrafts. The regulation of trade and prices became the power of these separate bodies and even wages and working conditions were regulated. By the fifteenth century every town having twenty men had a guild of its own. 27. Fox, Monopolies and Patents 32 (1947). Guilds were known to exist much earlier than this time. They were gradually degraded to state supervised agencies, complete state control being established in Alexandria by 100 B. C., in Constantinople by A. D. 800, in Venice by 1300 and in France by 1650. Prager, op. cit. supra note 14, at 713. 28. Fox, op. cit. supra note 27, at 32. 29. Ibid. The League had been encouraged to settle in London by Henry III, who gave it many privileges so trade could be monopolized. These monopoly privileges were finally rescinded and given to English merchants. I Walker on Patents 6 (Deller ed. 1937). 30. 1 Robinson on Patents 4 (1890). 622 These guilds had monopolistic powers which were frequently abused. Like the merchant guilds, the craft guilds were still group monopolies. Private monopolies were still to come. [31] The guilds set the stage for the subsequent private monopoly patents. It was an easy step from the guild monopolies to the private monopolies, once the sovereign had fully established his power over the regulation of the trade. The early patents for invention, however, were often in conflict with the guild charters and had to be carefully drafted. [32] This is readily apparent from the Letters Patent of protection granted to foreign artisans by the Crown to induce them to come to England and practice their trades. We turn now to these early grants.
III. ENGLISH GRANTS BEFORE THE SIXTEENTH CENTURY The Letters of Protection English industry was far behind the rest of the world during the Middle Ages. As late as the sixteenth century England was comprised mainly of pastoral and mining communities. The English sovereigns were, therefore, eager to induce skilled artisans to come to England and develop manufacturing industries. Edward II and Edward III deliberately fostered English industry. Not only did they carefully regulate it in England but they also attracted new industries from abroad by offering letters of protection to foreign artisans. As early as 1324 Edward II invited highly skilled German miners to come to England and gave them the king's protection. Edward IV and his Tudor successors repeated such invitation. [33] The first English manufacturing industry to gain any importance was the cloth industry. This craft, more than any other, was developed through early privilege grants. In 1327 Edward III proclaimed in London that the wearing of foreign cloth was prohibited and, 31. Fox. op. cit. supra note 27, at 35-8. 32. Id. at 42. 33. Gomme. op. cit. supra note 12, at 9-10. 623 … in order to encourage people to work upon cloths, the king would have all men know that he will grant franchises to fullers, weavers, dyers and other clothworkers who live mainly by this mystery whenever such franchises are asked for.” It was not long before such a franchise was asked for. In 1331 the earliest royal grant having the avowed purpose of instructing the English in a new industry was bestowed upon John Kempe from Flanders and his company, who were weavers, dyers and fullers of woolen cloth. The king took John under his special protection because he had come to England to engage in his trade and instruct apprentices. The grant recited that any others who would be willing to cross the sea for the same reason would also be protected. [35] In 1336 two weavers from Brabant were given similar letters to settle at York, [36] and other cloth workers from Brabant settled in London and Bristol with such letters. [37] Many comparable grants quickly followed to fullers and weavers from the Low countries who migrated to England in considerable numbers. This system of protection is one of the main reasons the English woolen industry was so advanced during the sixteenth and seventeenth centuries [38] The Letters Patent of protection granted to John Kempe and other weavers at this time were like passports which allowed them to come to England and practice their trade. No monopoly and no immunity to authority was granted. [39] Industry was still under the control of the guilds and the alnager and his officers supervised the character of the cloth sold. Protection of the immigrant workers was necessary to overcome the strict guild regulations against competition and, as the number of these patents increased, the guild power declined. This 34. Ibid. 35. Hulme, The History of the Patent System Under the Prerogative and at Common Law, 12 L. Q. Rev. 141 (1896); Gomme, op. cit. supra note 12, at 10; Fox, op. cit. supra note 27, at 43. 36. I Walker on Patents 3 (Deller ed. 1937). 37. Fox, op. cit. supra note 27, at 46. 38. Gomme, op. cit. supra note 12, at 10. 39. Hamilton, Patents and Free Enterprise 11, T. N. E. C. Monograph No. 31 (1941). 624 was the beginning of a deliberate and vigorous policy to expand English industry which Edward III and his successors pursued with excellent results.[40] In 1337 the 1327 proclamation of Edward III was implemented by an Act of Parliament which provided that : … all the clothworkers of strange lands of whatsoever country they be which will come to England Ireland Wales and Scotland within the king's powers shall come safely and surely and shall be in the king's protection and safe conduct to dwell in the same lands choosing where they will, and to the intent the said clothworkers shall have the greater will to come and dwell here our sovereign lord the king will grant them franchises as many and such as may suffice them. [41] Edward III extended this policy to other trades. Linen weavers were brought from Flanders and three clock makers came to England from Delft in 1368 for a- short period. The English silk trade, which had been brought to England by the importation of foreign artisans, was itself protected from imports by a series of statutes beginning in 1329. [42] During the reign of Richard II the manufacture of silk and linen was well established in London, but whether by Letters Patent or otherwise is not certain. [43]
The King's Prerogative The right of the Crown to grant privileges for new trades was recognized very early. In 1367 a case was decided in which it was said that the arts and sciences were for the public good and greatly favored in law. The king, as chief guardian of the common weal, had the power and authority by his prerogative to grant many privileges for the sake of the public good although, prima facie, they appeared to be clearly against the common right. This indicates that the right of the English sovereign to grant privileges was of ancient origin and was derived from the early common law. [44] 40. Fox, op. cit. supra note 27, at 45. 41. 11 Edw. III, c. 5 (1337). 42. Fox, op. cit, supra note 35, at 48. 43. Hulme, op. cit. supra note 35, at 143. 44. Hindmarch, Patent Privileges for the Sole Use of Inventions 3 (1847). 625 A monopoly right, as opposed to a mere privilege, while also obtainable from the sovereign, was in derogation of the common right of freedom of trade and could not be granted without some consideration moving to the public. Even in the early days there were limits beyond which the sovereign could not tread and Parliament did not hesitate to insist upon observance of Chapter 41 of the Magna Carta, which declared that all merchant strangers in the realm should be allowed to buy and sell their goods by the old and rightful customs. In spite of this, royal grants of trade monopolies were so common that statutes were passed in 1336, 1352 and 1354 opposing such grants. In 1373 Edward III granted to John Peachie the sole importation of sweet wine into London and in 1377 Parliament declared this grant void. The Statute of Cloths of 1378 is illustrative of the problem at this time. It declared that all merchants could buy and sell without disturbance within the realm, regardless of any statutes, ordinances, charters, judgments, allowances, customs or usages to the contrary. [45] It thus appeared that the English people recognized the inherent dangers of monopolies immediately and took steps to eliminate them where trade was unduly hampered.
Letters Patent for Inventions The letters of protection which the Crown extended to foreigners beginning in the early fourteenth century were for the purpose of establishing new industries which, although unknown in England, were well known in the countries from which the artisans came. E. Wyndham Hulme, writing in 1896, claimed that the first patent for a newly invented process was granted to John of. Shiedame and his company in 1440. John was invited to introduce a method of making salt on a scale theretofore never attempted in England. [46] This may or may not have been the first English patent for an invention to an inventor. It is certain, however, that it was still merely an 45. 2 Ric. II, st. 1, c. I (1378); Fox, op. cit. supra note 27, at 58-9. 46. Fox, op. cit. supra note 27, at 44; Hulme, op. cit. supra note 35, at 143. 626 invitation to a foreigner to come to England, similar to that extended to the German miners in 1324. The inventor was not granted a monopoly. There is some slight evidence that Henry VI granted certain monopoly patents in 1456 for the making of a philosopher's stone for medicinal and other purposes. [47] It is the better view that Henry merely appointed two successive commissions to look into the matter. The alchemical patents were probably either warrants for the arrest of the individuals infringing the grants or were dispensations from, the penal statute of 5 Henry IV, which made the practice of transmutation a felony. [48] Allan Gomme, librarian of the British Patent Office until 1944, writes that the first English monopoly patent for invention was granted on April 3, 1449, to John of Utynam, who had returned to England from Flanders at the king's command. Because John's art of making colored glass had never been used in England and because John intended to instruct divers lieges of the king in many arts never used in the realm besides glass making, no one other than John was permitted to practice these arts for twenty years unless John consented thereto. [49] John may not have been the actual inventor of the process but to obtain a patent, this was unnecessary. Even today in England a valid patent can be issued to the proprietor of an invention who first introduces it into the realm, unlike the law of the United States, under which only first inventors can obtain valid patents. Like earlier patentees, John of Utynam promised to instruct others in his art so that it could be developed in England when the grant expired. Unlike the others, however, John was granted a monopoly privilege under which he could exclude others from practicing his art for a period of time. [50] This is probably the first English patent for invention as it is known in England today. 47. Hamilton, op. cit. supra note 39, at 12; Hindmarch wrongly ascribes these alchemical patents to Edward III. Hindmarch, op. cit. supra note 44, at 3. 48. Hulme. op. cit. supra note 35, at 1434. 49. Gomme, op. cit. supra note 12, at 6. 50. Id. at 11. 627 The earlier grants were either for the introduction of industries well known in foreign countries and not necessarily invented by those artisans receiving the grants or were patents for inventions which did not grant monopolies, such as that to John of Shiedame for his newly invented method of making salt. The custom of attracting foreigners having special skills was continued. In 1452 a grant was made to three miners and their company, brought over from Bohemia, on the ground of their possessing “meliorem scientism in Mineriis.” [51] Chancellor Moreton, in a message to Parliament during the reign of Henry VII, noted that the system of inviting and. protecting foreign artisans was for the purpose of setting the people to work on various handicrafts, making the realm more self sufficient, eliminating idleness and preventing the drawing out of English funds for foreign manufactures. [52] The migration of foreign workmen left a lasting influence on England. English industry advanced from a time of Edward II when all goods other than articles of everyday use were imported to a time when cloth making, mining, metal working, coining, ordnance production, glass making, engineering, clock making, sugar manufacturing and paper manufacturing were all well developed industries due to the introduction of foreign artisans. [53]
IV. THE SIXTEENTH CENTURY BEFORE ELIZABETH The English patent law made greater advances in the Tudor period than in any other period of history. It is true that it was the Statute of Monopolies in the Stuart era that limited monopoly grants and it is also true that the prerogative under which the sixteenth century monopolies were granted existed and was used long before that time. But the unprecedented and frequent uses to which Elizabeth put her prerogative were quite unlike any exercise of this sovereign power before. The sixteenth century could well be called the birth years of the English patent system. 51. Fox, op. cit. supra note 27; at 44; Hulme, op. cit. supra note 35, at 143. 52. I Walker on Patents 3 (DeIler ed. 1937). 53. Fox, op. cit. supra note 27, at 44-56. 628 The Beginning of the Regular Grants The use of the patent privilege was well understood in England by the middle of the sixteenth century. On March 20, 1537, Antonio Guidotti, a Venetian who had received papers of denisation from Henry VIII in 1533, wrote from Messina, Italy, to Thomas Cromwell, the King's Principal Secretary, saying that he had persuaded some Italian silk weavers to go to England and practice their craft at Southampton. Cromwell was asked to intercede with the king to grant Guidotti a privilege for fifteen or twenty years to prevent others from making Italian silk. No grant to Guidotti is recorded but the casual manner in which the privilege mentioned suggests that Guidotti was well acquainted with the Venetian system and he assumed Cromwell would understand what he wanted without much explanation. The English were thus probably greatly influenced by the earlier Venetian patent system. [54] In 1552 Edward VI granted a patent of invention to Henry Smyth, a London merchant. The patentee intended to introduce foreign workmen “mete and experte” in the making of : … brode glasse of like fasshion and goodes to that which is commonly called Normandy glasse which shall not only be a great commoditie to our said realme and dominions but also bothe in the price of the glasse aforesaid and otherwise a benefite to our subjectes and besydes that dyvers of theym maye be sett to worke and get their lyvying and in tyme learne and be liable, to make the said glasse them selfe and so from tyme to tyme instructe the others in that science and feate. [55] Smyth received a monopoly privilege for twenty years, under which: No manner of person or persons not licensed, or auctorised by the said Henry Smyth as is afore mencioned shall attempte or presume to make any kynde of the said brode glasse commonly wount to be called Normandy glasse or any other fytte for wyndowes upon peyne or forfayture of all the same glasse by 54. Gomme, op. cit. supra note 12, at 8-9. 55. Davies, Further Light on the Case of Monopolies, 48 LI Q. Rev. 396 (1932); Fox, op. cit. supra note 27, at 60-1. 629 any of theym so to be made and as they and eny of theym regarde our expresse comaundment and entende too avoyde that trouble and perell which shall ernestly and indelayedly insue in this behalfe. [56] This was the first of the relatively numerous patent grants of the latter half of the sixteenth century. As had earlier patentees, Smyth promised to instruct others in his art so that the industry could be practiced widely when the grant expired. Note that this patent and the patent to John of Utynam a. hundred years earlier gave monopoly privileges for twenty years. Other patent privileges to individuals had not granted monopolies but only privileges to practice the art in England. Before this time the guilds had been the exclusive recipients of monopolies but now individual inventors and individuals who brought new industries from abroad were to receive monopoly privileges similar to those the guilds had enjoyed. Although the patent to John of Utynam preceded the Smyth patent by 103 years, there were no known intervening grants. John's patent stands alone in the fifteenth century and it was not until Henry Smyth that the English system of monopoly patents to inventors for inventions began as a regular custom. The patent to Smyth was followed by a grant. by Queen Mary in 1554 to Burchart Cranick of a twenty year sole license to mine, break open ground, melt, divide and search for all manner of metals [57] by a special method. [58] In the preamble of a statute of 1555 [59] reference is made to certain merchants of Norwich who, having obtained some Italian workmen, so improved the art of making Russels, Sattens, Satter reverses and fustians, that they competed successfully with their foreign rivals. They were rewarded with a charter giving practically a monopoly of the industry and other privileges. This is the first historical reference to capitalistic speculative enterprise embarked upon by the newly risen middle 55. Ibid. 57. Fox, op: cit. supra note 27, at 61. 55 Gomme, op, cit. supra note 12, at 9. 59 I & 2 Phil. & Mary. c. 14 (1555). 630 class outside of the old merchant and craft guilds. Wealth and political influence were acquired by the middle class in the sixteenth century due to the disappearance of the old nobility during the Wars of the Roses and the redistribution of monastic property under Henry VIII. Joint stock companies having .English investors began to appear at this time and it was no longer necessary for the Crown to finance the entrance of foreign artisans upon English industry because the enterprising merchant class was acquiring resources and seeking investments. [60] The early Tudors practiced a perversion of the sovereign prerogative right unknown before them. Instead of granting open letters for the furtherance of national industry, the Crown began negotiating secretly to attract foreign artisans into its own service. German armorers, Italian shipwrights and glass makers, and French iron founders were brought to England in this manner. The precise relation between the Crown and these people is not known because these grants were not published and were not recorded on the Patent Rolls. The Italian glass makers came to England around 1550 under the protectorate of Somerset but were recalled by the Venetian State. The French iron founders successfully established the art of casting iron ordnance in the Weald district and soon afterwards the old bronze cannons became obsolete. [61] These practices contributed little to the development of the system of granting patents for inventions but they were some of the abuses to be remembered by the Parliaments of the early seventeenth century just before the Statute of Monopolies. It is to the customs of Elizabeth, both abusive and otherwise, that the English patent law owes the most in its development. Whatever the earlier sovereigns may have done, Elizabeth brought the attention of all England to the Crown's prerogative and did more to cause the development of patent law than all the other sovereigns 60. Hulme, op. cit. supra note 35, at 144-5; I Walker on Patents 3 (Dellered. 1937). 61. Hulme, op. cit. supra note 35, at 144. 631 before her combined. The subject matter of the Elizabethan grants., more than anything else, drew public notice to Elizabeth's patent policies and it is to this subject matter that we now turn our attention.
V. THE SUBSTANCE OF ELIZABETH'S GRANTS Elizabeth's Policies As the last of the Tudors acceded to the English throne the country was still far behind the Continent in industrial arts. Elizabeth tried desperately to develop industry by importing skilled artisans and encouraging enterprising men to undertake the risks of introducing new industries. She was not without success. For example, following the establishment of the French iron founders in the Weald district through secret negotiations, the pressing need for ordnance at the beginning of Elizabeth's reign was the cause of a number of patents issued at William Cecil's (Lord Burleigh) insistence and England's ordnance became the best in Europe by 1600. [62] Cecil was greatly desirous of making the realm self sufficient by developing industry of every kind. He accomplished this by granting patents of monopoly after careful inquiry into the novelty of the art and the possible public benefit. An attempt was made to introduce new industry without disturbing the old [63] and, whatever the abuses which resulted, at least the intentions behind the monopoly grants were good. Had Elizabeth confined her grants to inventors and procurers of novel foreign inventions the loud cries of Parliaments at the end of her reign may never have been raised. The events of her reign were such that many persons were able to distinguish themselves in civil and military activities and Elizabeth, being low in funds, rewarded them with monopoly patents for their endeavors. These grants would not have precipitated the intense hatred of monopolies had her patentees not abused their monopoly privileges by raising the prices of commodities and unreasonably restraining and harassing 62. Fox, op. cit. supra note 27, at 61, 67.• 63. Id. at 67-8. 632 their competitors. [64] The most flagrant misuse of Elizabeth's prerogative was in the granting of monopolies in industries which were already established in England. It was such a grant that led up to the Case of the Monopolies [65] and such grants were attacked most vigorously in the Parliament which passed the Statute of Monopolies. [66]
Jacobus Acontius to the Queen The Italian patent system must be credited with, if not greatly influencing the English sovereigns at this time, at least strongly suggesting rewarding of inventors by monopolies. Reference has already been made to the letter of Guidotti. [67] In addition to this letter, an undated petition is to be found among the English State Papers of 1559 in which one Jacobus Acontius (or James Acontius, as Hulme calls him), an Italian by birth who had been granted letters of naturalization in England and who received a small Crown pension, prays for a patent for his grinding machine. [68] Guidotti had not thought it necessary to explain the type of privilege he desired but Acontius presents history with the first recorded reasons for granting Letters Patents for inventions: Jacobus Acontius to the Queen. Nothing is more honest than that those who, by searching, have found out things useful to the public should have some fruits of their rights and labors, as meanwhile they abandon all other modes of gain, are at much expense in experiments, and often sustain much loss, as has happened to me. I have discovered most useful things, new kinds of wheel machines, and of furnaces for dyers and brewers, which when known, will be used without my consent, except there be a penalty, and I, poor with expenses and labor, shall have no returns. Therefore I beg a prohibition against using any wheel machines, either for grinding or bruising, or any furnaces like mine without my consent. [69] 64. 1 Walker on Patents 6-7 (Deller ed. 1937). 65. Darcy v. Allen, 72 Eng. Rep. 830 (Moore 671), 74 Eng. Rep. 1131 (Noy 173), 11 Coke Rep. 86, 1 Abbott's Patent Cases 1 (King's Bench 1602). 66. 21 Jac. 1, c. 3 (1623). 67. Supra, note 54 68. Hulme, op. cit. supra note 35, at 148. 69. Fox, op. cit. supra note 27, at 27. 633 The petition of Acontius must be noted as one of the most important events in the history of English patent law. It may not have been the first attempt to convince the Crown that an inventor has a property interest in his invention which should be protected but it is the first argument to this effect available to us in writing. Here is Jacobus Acontius, a citizen of Trent, “poor with expenses and labor,” begging a prohibition against the use of grinding machines without his consent, and, in the centuries to follow, searching inventors, abandoning “all other modes of gain,” and often sustaining “much loss,” were to come before their sovereigns like Acontius and receive “some fruits of their rights and labors” to recompense them for their contributions to society. “Nothing is more honest.” The patent grant to Acontius did not issue until 1565, some fifteen grants by Elizabeth being made before his. At least one writer feels it unlikely that six years would have elapsed between the petition and the grant and therefore the petition may have gotten among the 1559 papers in error and its true date might be 1565. [70]
The Subject Matter of the Elizabethan Grants The best English soap at this time was soft mottled Bristol soap. . Hard Spanish soap of Castile was employed for fine laundry work, for which the English soap was unsuitable. On January 3, 1561, Elizabeth's first patent grant was given to Stephen Groyett and Anthony Le Leuryer for the making of “white sope”. The grant extended for ten years and stipulated that at least two of the servants of the patentees were to be of native birth (which indicates that the patentees were probably aliens) and the white hard soap to be made was to be as good and fine as that made in the “Sope house of Triana or Syvile.” The patentees' wares were to be submitted to the municipal authorities for inspection and, on proof of defective manufacture, the privilege was to be void. [71] This was the first of a long line of Elizabethan industrial 70. Gomme, op. cit. supra note 12, at 9. 71. Hulme, op. cit. supra note 35, at 145. 634 monopoly licenses granted during the years 1561 to 1600. At least fifty-five [72] such grants were made and possibly more. Many of the patents were reissued up to three times and, counting the reissues, Elizabeth's grants may number seventy-five or eighty. The manufactures monopolized by these grants are astonishing. They covered : [73] white soap Spanish leather house to house saltpeter making water supply dredging machines salt system alum grinding machines musical instruments water drainage corn mill milling machinery machines iron tempering sail cloth ovens and furnaces dying and dressing vinegar iron sulfate cloth starch mining of gold, sil- mine drainage playing cards ver, tin, lead and Frisadoes (clothes) zinc carbonate other metals and knife handles window glass ores earthen fire pots ale sulfur Venetian glass rape seed oil making It seems fantastic that some of these commodities, for example, salt, were monopolized by one or two individuals but such was the case and this is only a partial list. Some of the grants were for inventions and others were for the importation of the article or process into the realm. In Elizabeth's time the term “invention” covered discovery of inventions and arts of others outside of the realm as well as origination of the invention in the inventor's mind. [74] The terms, “invention”, “discovery” and “first finding out” are used indiscriminately on the Patent Rolls and in the literature of the period and it is difficult to determine which of these early patents were for actual inventions. [75] 72. Hulme, The History of the Patent System Under the Prerogative and at Common Law, 12 L. Q. Rev. 141 (1896), continued at 16 L. Q. Rev. 44 (1900). 73. Hulme, op. cit. supra note 72. 74. Fox, Monopolies and Patents 62 (1947). 75. Hulme, The History of the Patent System Under the Prerogative and at Common Law, 16 L. Q. Rev. 44 (1900). In the earlier half of this article Hulme states that the word “invenio” denotes primarily a physical act rather than a mental process. 12 L. Q. Rev. 141, at 151. 635 VI. THE LEGAL CONSEQUENCES OF ELIZABETH'S GRANTS Analysis of Elizabeth's Grants The Elizabethan grants may be divided into four main categories. [76] First, there were those industrial monopolies which were perfectly valid both at common law and after the Statute of Monopolies. Included here were grants for inventions originating in the minds of the inventor and those communicated to an Englishman from abroad. Other grants considered unobjectionable in Elizabeth's day were those for the importation into the realm of new products theretofore unknown and those for new trades. A second group of grants, also occasioning little objection, included special licenses dispensing with statutes forbidding the import, export and transportation of certain commodities. These statutes were sometimes found impractical and, instead of repealing them, it was customary to grant special licenses for their evasion. These licenses were exclusive privileges but were not industrial monopolies. The 1456 grants of Henry VI for the making of a philosopher's stone were probably of this type. A third category was comprised of those objectionable patents granting a power of supervision over a trade or industry. Among these were the grants for the supervision of inns and alehouses, because of which Mompesson and Michell were impeached in 1620-1. This type of grant was hated more than any other kind of monopoly and, had Elizabeth not made these, the Parliaments of James I probably would not have attacked monopolies so vigorously. Even in her patent grants for inventions and new industries, Elizabeth frequently granted the right of supervision, search, seizure and arrest of infringers. The energetic exercise of these rights by many patentees was extremely distasteful to the people. 76. The classification is that of Lipson but I have renumbered the categories. 3 Lipson, The Economic History of England 352-6 (1929). See also Davies, op. cit. supra note 55, at 397-8; Fox op. cit. supra note 74, at 62-5. 636 In a fourth category are found the grants to an individual or group of the sole right to engage in an already established trade or industry. These patents were invalid for want of consideration moving to the public since people were restrained from a liberty they possessed before the grant. Many of the patentees in this group vexatiously interfered with trade and became great nuisances. Before Elizabeth's time this type of grant had affected primarily alien merchants and importers. But now that Englishmen began to suffer under them they precipitated great public dismay. Some patents which had originally been good eventually found their way into this category. For example, the 1561 grant to Groyett and Le Leuryer, initially quite valid under the common law, since their method of making hard, white soap was novel in 1561, degenerated into a series of additional grants long after the manufacture of white soap and the trade therein had ceased to be novel. Similarly, a 1588 grant to Richard Young of the right to import, make and sell starch made from bran of wheat “ was reissued a number of times and as late as 1661 the Company of Starch Makers still exercised the monopoly given in the original grant. [78]
Comparison with Today's Patents Although Queen Elizabeth seemingly subscribed to the theory of Acontius, that an inventor had a common law property right in his idea which existed apart from any privilege bestowed under the sovereign's prerogative, she continued to assert her absolute right of jurisdiction in all cases of dispute arising out of her grants. This attitude stemmed from the law before Elizabeth, under which the sovereign was the sole patron and had complete control over the new industry introduced into the realm under the protection of Letters Patent. Few individuals dared to dispute the Queen's grants before the 77. Hulme, op. cit. supra note 75, at 49. Sir John Pakington was the patentee of the first two reissues of this patent. He greatly abused the privilege in his use thereof. 78. Fox, op. cit. supra note 74, at 64. 637 Council or in the Court of Star Chamber of Exchequer (infringers had no access to the common law courts) as the Court might regard infringement of the patent as evidencing disrespect for the Queen's authority. In the England of today, of course, the Crown no longer has authority over the validity of a patent. The Statute of Monopolies provides that the validity of all monopolies and patents is to be determined by the common law. [79] It should be pointed out, however, that Elizabeth gave up her right to determine the validity of her grants in her own courts in 1601, before the Case of Monopolies and long before the Statute of Monopolies. Another difference between Elizabethan patent law and the present English system exists in the definition of novelty. Elizabeth desired to introduce those industries into the realm which would produce manufactures imported theretofore, such as alum, glass, soap, oils, malt, saltpeter, latten, etc. The petitioner had only to show that the industry had not been carried on within the realm within a reasonable period of time. [80] Today, however, the proof of a single public sale of an article before application for a patent can render a subsequent issued patent invalid. Similarly, a. printed publication of the invention can negate patentability. An even more striking divergence between Elizabethan and modern patents is that most of the former gave the exclusive right of manufacture or importation and not the right of sale (although patentees could frequently prevent sales of infringing products). The consumer could thus purchase the commodity from anyone who could manufacture it under a different process. What is even more important, the consumer could buy it from an importer, since the patentee usually had no monopoly over importation. [81] Today a patentee obtains the sole privilege to vend the invention in addition to the manufacturing privilege. 79. 21 Jac. I, c. 3, § I I; Hulme, The History of the Patent System Under the Prerogative and at Common Law, 12 L. Q. Rev. 141, at 151. 80. Hulme, op. cit. supra, note 79, at 153. 81. Ibid. 638 Consideration for the Grants As has been noted, the monopoly privilege was valid only when some consideration moved to the public. The consideration was the introduction into the realm of a new product or process theretofore unknown. Elizabeth assured receipt of this consideration by requiring : 1. Native apprentices to be taught the art. 2. A disclosure of the secrets of the new art. 3. Working of the invention within a specified time. 4. Small reservations of rent to the Crown. The latter three requirements were exacted only occasionally, while native apprentices were almost always forced on the patentee. The statements or professions of applicants in their petitions for patents generally formed the basis of the grants issued. Like Jacobus Acontius, many of them declared that they had expended time and money to discover industrial secrets which would greatly benefit the realm and that they had already taken steps to obtain control of the secret where it originated outside the realm. The petitioner had to state that the industry had not theretofore been practiced in the realm and.he was bound by this allegation. Furthermore, even where no working clause was present in the grant, the patentee was expected to introduce the industry and to realize the full expectations the Crown had been led to believe concerning it, i.e., the industry had to prove sufficiently beneficial before the patentee had discharged his liabilities.82
Instruction of Native Apprentices Because Elizabeth desired to instruct her subjects in new industries so imports could be reduced, in most of her grants she required the patentee to disclose the invention to English apprentices. An example of such a provision is to be found in the 1561 grant to Philip Cockeram and John Barnes to make saltpeter for ten 82. Hulme, On the Consideration of the Patent Grant, 13 L. Q. Rev. 313 (1897). 639
Crown Rents Elizabeth would frequently reserve a small rent to herself in the patent grant. In her 1588 grant to Richard Young to import, make and sell “le starche” for seven years an annual rent of £40 was reserved, although it is said that the real consideration for the grant was the suppression of the manufacturing of starch from grain, the patentee being confined to the production of starch from bran of wheat. Sir John Pakington was granted a reissue of this patent for eight years in 1594 and again in 1598. Sir John was typical of those patentees who abused their privileges at this time. He imprisoned at least one individual for reselling starch purchased under the patent and it is possible others suffered similarly. 83. Hulme, op. cit. supra note 79, at 145. 84. Fox, op. cit. supra note 74, at 49. 85. Hulme, op. cit. supra note 79, at 145. 86. Hulme, op. cit. supra note 82, at 314. 640 This patent was clearly illegal, particularly after its reissue, because the production of starch from wheat bran was not novel! [87]' An annual rent of £20 was reserved in the 1594 grant to Richard Drake for the production of aqua composita, aqua vitae and vinegar, for twenty-one years. Ale was made from these ingredients and the granting to Drake of the sole manufacture of the ale excited great public indignation. There were exaggerated recitals in the grant and it was grossly abused by the patentee. [88] The reservations of rent in these grants were but nominal. The main consideration for the grants was purportedly the introduction of new industries into the realm.
Written Disclosure of the Invention Patents for inventions are not granted today unless the inventor discloses his invention. Such a disclosure comprises a written specification of an operable form of the invention and it is usually printed and published upon the grant. The stipulation requiring Gerard Honricke to reduce his process for making saltpeter to writing was an exception rather than an example of the general procedure followed by Elizabeth. She did, in fact, institute a custom which was in direct conflict with the principle of written disclosure. In the 1565 grant to Jacobus Acontius for the manufacture of grinding machines there appears for the first time in grants for inventions a final clause stating that the patent should be favorably construed at law, … notwithstanding the not full and certain describing the nature and quality of the said invention, or of the materials thereunto conducing and belonging. [89] This clause was modeled after similar ones in earlier patents confirming grants of land, etc., to and from the Crown. It reappeared in Letters Patent for inventions in 1617 and was thereafter used regularly. Neither speci- 87. Hulme. The History of the Patent System Under the Prerogative and at Common Law, 16 L. Q. Rev. 44, at 49 (1900). 88. Id. at 50. 89. Hulme. op. cit. supra note 82, at 313. 641 fication nor written disclosure was required in the vast majority of the Elizabethan grants. However, the patentees were obliged to teach the invention to native apprentices and therefore this was not a bone of contention among the vociferous common law enthusiasts of 1601 and 1623 because the public gained the benefit of the invention.[90] An inventor in 1611 suggested the innovation of completely disclosing the invention as a supplement to the patent grant. Simon Sturtevant, a manufacturer of tiles, paper and pressed ware at Highgate, applied for an exclusive right to use certain inventions in the use of coal for smelting iron and generally for the use of coal as a fuel in industries in which wood had been used. With his petition for patent Simon filed a “Treatise of Metalliea” and in this he promised to provide a final and more explicit statement of his invention, which was to be printed and published within a fixed period after the grant. He gave as his reasons for this disclosure that he wished to show: 1. His invention was new and not stolen. 2. The inventions of other men were not to be prevented by him. 3. No one else had petitioned the king for the same invention. 4. He was to be bound by the proviso in his grant as to a further complete disclosure.” Sturtevant's patent issued in 1612 and he submitted the promised complete disclosure. The patent was cancelled the following year for Sturtevant's failure to work it but was reissued to one Rovenzon, who published a third treatise on the subject. It is noteworthy that the idea of a specification was suggested by an inventor and not by the Crown. Sturtevant perceived the value of defining the scope of his invention to protect its validity. Sturtevant's provisional and complete specifications were the 90. Ibid. 91. Id. at 316. 642 first in English history and no others were submitted until that of Nasmyth a. hundred years later. [92] Today, of course, the provisional and complete specifications are an accepted part of British law.
Working Under the requirement of working, the patentee had to put the subject matter of his grant to use or sell the product thereof within a specified time or the grant would become void. This obligation was a logical outgrowth of the monopoly system. A monopoly to one individual should not be valid unless the public receives some consideration for staying out of the monopolized area. If the patentee is given the monopoly and then fails to produce anything from which the public can ultimately gain some benefit, no consideration passes. This principle was recognized at an early time. Bartolomeo Verde, who received a payment from the Venetian special privilege fund in 1332 to build a windmill, [93] had to refund the money at once if he did not complete his installation and make it work within six months. [94] Even the letters of protection granted to John Kempe and other alien artisans were granted on the express condition that they come to England and practice their trades. Today a British patent must be worked in the 'United Kingdom on a commercial scale and in the fullest possible measure within three years from the date of sealing. In the event of non-working or insufficient working any person may, after the three years expire, apply for a compulsory license. [95] 92. Ibid. 93. Supra note 14. 94. Prager, A History of Intellectual Property From 1545 to 1787, 26 J, P. 0. S. 711 (1944). 95. Octrooibureau Los En Stigter, Manual for the Handling of Applications for Patents, Designs and Trade Marks Throughout the World, Great Britain, pp. 8-9 (2nd ed. 1936). Austria, Canada, Denmark, France and Sweden have compulsory licensing laws based on mere nonuse by the patentee. England, Germany have compulsory licensing based on specified abuses and as to certain classes of goods. Switzerland has both types of provisions. On compulsory licensing in general see Neumeyer, Compulsory Licensing of Patents Under Some Non-American Systems: Study No. 19 of the Subcommittee on Patents, Trademarks and Copyrights of the Committee on the Judiciary, United States Senate (1959). 643 In this country, except in certain instances in which the antitrust laws are violated, there is no compulsory licensing or working. We believe the public receives adequate consideration for the patent grant in the published specification and drawings, which are dedicated to the public after the seventeen year term. The continuing adherence to the old law by the British is probably primarily caused by a reluctance to change rather than by a real need for such working. Even though inventors are not required to make use or sell their inventions in this country, there has been no evidence of deliberate restraint of beneficial inventions from the public upon the patenting thereof. Great Britain and the other countries having compulsory working laws could probably do quite well without them.
VII. SEQUEL The English patent system was not the outgrowth of abuse of Elizabeth 's monopolies. Once she accepted the policy of Acontius, Elizabeth created the basis of our patent law. What followed was merely inevitable growth and definition of the scope of the basic principles. Neither the Case of Monopolies nor the Statute of Monopolies constitutes the foundation of the English patent system. These were only effects, not causes. [96] It was Elizabeth who first foresaw the value of rewarding inventors. Had she limited her grants to new inventions, the Case of Monopolies and the Statute of Monopolies might never have been a part of history. Unfortunately, however, the Crown's treasuries were low and too frequently Elizabeth granted patents for purely mercenary reasons, attempting to obtain either a cash payment or a share of the profits from a grant. The grantees often knew little of the particular art and the monopoly system became a system of plunder. The general public began .to suffer and then outcries were heard in the Parliament. [97] 96. Pox, op. cit. supra note 74, at 81. 97. Id. at 70. 644 Elizabeth was aware of the approaching shackles her power of prerogative was to bear. In the first ten years of her patent grants twenty-three original grants were made. Only twenty-six grants were made in the next twenty years and there were only six grants in the years 1951 to 1600. In the last three years of her reign no original grants were made.[98] As the murmurings increased, her grants decreased, but the damage had already been done and the stage was set for confinement of the monopoly grant to new inventions only. Elizabeth's timidity in making grants at the end of her reign might even have added fuel to the fire of indignation. Among the noteworthy inventions refused patents at this time were Stanley's invention of armor plate, Gainibelli's method of land reclamation, Harrington's water closet, which then had to wait one hundred and fifty years before its introduction and use, and the stocking frame of Lee, [99] which was refused a patent because of the injury it might have done to the hand knitters. [100] Lee subsequently took his stocking frame to France, where it was accepted and patented. [101]' The first public denunciation of monopolies in Parliament came in 1571 when a member named Bell severely criticized monopoly licenses and their abuse. He was reprimanded before the Privy Council and the Queen advised the House “to spend little time in Motions, and to avoid long Speeches.” In 1597 the subject was again brought up in Parliament and again the Queen rebuked them. [102] In 1599 the Merchant Tailors' Case [103] was heard in the Court of the King's Bench. An ordinance of the London Company of Merchant Tailors required every brother of the Company to give at least half of his cloth to be dressed to some other brother of the society, under 98. HuIme, op. cit. supra note 87, at 52. 99. Fox, op. cit. supra note 74, at 74. 100. Gomme, op. cit. supra note 12. at 24b. 101. Fox, op. cit. supra note 74, at 74. 102.Id. at 74-5. 103. Davenant v. Hurdis, 72 Eng. Rep. 769 (Moore 567), 11. Coke Rep. 86 (King's Bench 1599). 645 pain of forfeiture of 10 shillings for failure to do so. The Court held the ordinance void since it was a monopoly. The view of the common law was that monopolies were void unless for the common good. In 1601 a declaratory bill was introduced in Parliament which was designed to eliminate the monopoly abuses and restore freedom of trade. After several days of heated debate the Queen sent a message to the House through the Speaker to the effect that some of the more abusive monopolies would be repealed and that none would be executed until they were tried according to the law for the good of the people. Three days later Elizabeth issued a proclamation declaring a number of :monopolies to be void and providing that thereafter grants of patents could be tested by a subject under the laws of the realm, notwithstanding anything in a grant to the contrary. [104] In 1598 Edward Darcy, a Groom of the Queen's Privy Chamber, had been granted a twenty-one year license for making and importing playing cards. [105] As late as 1603 actions against Darcy were prohibited [106] but in the Easter Term, 1602, Darcy made the disastrous mistake of bringing an action himself against an infringer [107] and the common law courts were afforded an opportunity they might not have had for some time. In holding for the defendant and declaring Lord Darcy's grant void, the court pointed out that Darcy had no skill in making cards and those subjects who had engaged in this trade before the grant were greatly damaged by it. It was definitely against the common law. [108] This is the widely discussed Case of Monopolies. It was the first complete judicial enunciation of the common law principles concerning monopolies. It added, however, nothing to the common law of monopolies because patents of this type had never been recognized as valid. 104. Fox, op. cit. supra note 74, at 75-8. 105. Hulme, op. cit. supra note 87, at 51. 106. Fox, op. cit. supra note 74, at 87. 107 Davies, op. cit. supra note 55, at 405. 108. The Case of Monopolies, Darcy v. Allen, 72 Eng. Rep. 830 (Moore 671), 74 Eng. Rep. 1131 (Noy 173), 11 Coke Rep. 86, 1 Abbott's Patent Cases 1 (King's Bench 1602). 646 In 1603 James I acceded to the English throne and in 1605 the Case of Penal Statutes [109] was decided. In this case the Judges of England said that grants of power to dispense with trade penal laws, such as those prohibiting certain types of exports, were void. Those grants which afforded grantees the right to break the law by issuing dispensations from penal laws upon receiving fees were also void. This case was only one more step in the limitation of the Crown's prerogative. These grants had always been in conflict with the laws of Parliament. In 1607 the Case of Stannaries [110] and the Case of King's Prerogative in Saltpeter [111] were decided. In the former case the Star Chamber held that the King's preemption of tin in Cornwall, which James had given to Gilbert Brochouse for twenty-one years, was the King's to give, not by his prerogative 'but as his own. property, being ancient rent and inheritance due the King. In the Saltpeter case Parliament decided the King could grant licenses to certain men to dig for saltpeter on other men's lands because saltpeter was necessary for the production of gunpowder and this was needed for the defense of the realm. Parliament pointed out, however, that the licensees could not prevent a man from digging for saltpeter on his own land. These cases further defined the power of the Crown. The prerogative was becoming outlined in detail. James I, unlike Elizabeth, tried to keep the assertion of his prerogative within the common law, at least at the beginning of his reign. In 1603 he issued a proclamation against monopolies and in 1623 he formed a commission to hear complaints against monopolies. His most famous proclamation was his Book of Bounty of 1610, in which he declared that monopolies were against the laws of the realm and expressly commanded that no suitor should presume to move the King to grant them. Language in the Book was referred to later in the Statute of Monopolies. In 1621 James issued a proclamation revoking cer- 109. 7 Coke Rep. 36 (1605). 110. 12 Coke Rep. 9 (Star Chamber 1607). 111. 12 Coke Rep. 12 (Parliament 1607). 647 tain monopolies, but many were still existent and widespread abuse was common. [112] In 1615 the case of the Clothworkers of Ipswic [113] was decided in the Court of the King's Bench. Much of the language in the opinion is modeled after that in the Book of Bounty. The Court held an ordinance unlawful which prohibited anyone from being a cloth worker or tailor in the town of Ipswich before he had served an apprenticeship. The Court held that the King could create corporations and give them power to make ordinances governing trade, but they could not thereby monopolize trade in any manner. The Crown's prerogative was thus further defined and limited. The Court spoke favorably of patents for invention, although the case had nothing to do with these: But if a man hath brought in a new invention and a new trade within the kingdom, in peril of his life, and consumption of his estate or stock, &c. or if a man hath made a new discovery of any thing, in such cases the King of his grace and favour, in recompense of his costs and travail, may grant by charter unto him, that he only shall use such a trade or trafique for a certain time, because at first the people of the kingdom are ignorant, and have not the knowledge or skill to use it : but when that patent is expired, the King cannot make a new grant thereof : for when the trade is become common, and others have been found apprentices in the same trade, there is no reason that such should be forbidden to use it. [114] In the spring of 1619 matters came to a crisis. Five silk mercers had been imprisoned by a patentee and there was great public indignation. James released the men but proclaimed a continuance of the monopoly system. [115] The following year a great debate was waged in Parliament over a patent for inns and by 1621 complaints about monopolies were extremely widespread. [116] 112. II Coke Rep. 88d. Fox, op. cit. supra note 74, at 116, 336-7 . In 1639 James proclaimed other monopolies void. Fox, at 343. 113. 78 Eng. Rep. 147 (King's Bench 1615). 114. 78 Eng. Rep. at 148. 115. Thompson. Magna Carta - Its Role in the Making of the English Constitution-1300-1629, p. 301 (1943). 116. Fox, op. cit. supra note 74, at 97-8, 102. 648 On March 27, 1621, James suggested that the House draw up a proclamation against the three most objectionable patents and he “would give Life to it, without alteration. “ [117] The day before this, however, an act respecting monopolies was reported out of committee to the House and was ultimately passed on May 12th and sent to the Lords. The bill was thrown out by the Lords and James dissolved Parliament in February of 1622. [118] Agitation in Parliament continued and on May 25, 1624, the Statute of Monopolies [119] was passed. This act added little to the patent law but was a clear declaration of what the common law was in this area. The only real change the act made was to limit the term of patents to fourteen years. Another important portion of the act declared that patents were to be tested by the common law in the common law courts. Elizabeth, however, had already made this change twenty-three years ago. The Statute of Monopolies is not unimportant and many of its provisions are in effect today. [120] However, it was certainly not the final word on this subject. Monopoly abuses continued and as late as 1641 the Court of the King's Bench still had to define a valid patent. [121] And it was, of course, not until two hundred years had passed that the system of granting patents lost its clumsiness sufficient to enable inventors to obtain patents without long, drawn out prosecutions. [122] 117. Id. at 105. 118. Id. at 106-7. 119. 21 Jac. 1, c. 3. 120. Sir Edward Coke was very active in this area of the law at this time. He argued that monopolies had always been illegal in England under the Magna Carta of 1217. McKechnie, Magna Carta - A Commentary on the Great Charter of King John 384 (1914). Coke's definition of a monopoly, however, did not include a patent for an invention. 3 Coke, Institutes 181 (1648). Most writers feel that, although the Statute of Monopolies was passed in 1624, the law which it declared came from Elizabeth. Jarratt, English Patent System, 26 J. P. 0. S. 761 (1944); Vojacek, Back to Queen Elizabeth, 32 J. P. 0. S. 629 (1950). 121. Edgeberry v. Stephens, 90 Eng. Rep. 1162 (Holt 475) (King's Bench 1691). 122. Gomme, Patent Practice in the Eighteenth Century, 19 J. P. 0. S. 256 (1937). 649 VIII. CONCLUSION The English patent system owes much of its existence to the reign of Elizabeth. The history that preceded and followed her reign greatly contributed to the development of English patent law but it was Elizabeth who first recognized the great value of rewarding inventors and it was not until her reign that inventors were rewarded with patents regularly as a matter of course. It is not intended to detract from the importance of the Case of Monopolies and the Statute of Monopolies but these were only inevitable results following the movement Elizabeth had begun. Once the idea of granting monopolies was accepted by the people and the Crown, it remained only for Parliament and the courts to channel this principle into the proper conduit. Overzealous to please her favorites, Elizabeth extended the theory of Acontius far beyond its reasonable bounds. Finding that her subjects would not tolerate this, she gradually withdrew her policies back within the limits of the common law, which limits had existed long before her reign. Little did honest Jacobus Acontius realize what he was starting but thousands of inventors have since been indebted to him and to Elizabeth for their experimental steps 400 years ago. And, while our patent law may little resemble Elizabeth's, the foundations on which she built remain and are put to good use today. 650 |
