I. THE LETTERS PATENT
II. EARLY MONOPOLIES OUTSIDE OF ENGLAND
The First Monopolies
III. ENGLISH GRANTS BEFORE THE SIXTEENTH CENTURY
The Letters of Protection
The King's Prerogative
Letters Patent for Invention
IV. THE SIXTEENTH GENTUIW BKFORE ELIZABETH
V. THE SUBSTANCE OF ELIZABETH’S GRANTS
Jacobus Acontius to the Queen
The Subject Matter of the Elizabethan Grants
Comparison with Today's Patents
Consideration for the Grants
Instruction of Native Apprentices
Written Disclosure of the Invention
– Index and intro title added
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
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. '
* 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. §
In England it is the “sole privilege” to “make, use;
exercise and vend”  the invention for sixteen years. 
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.  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.  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. 
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).
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.  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.  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. 
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
gilders workers in lead
painters workers in
stucco mirror makers
silversmiths ivory workers
workers in marble
chests or beds
chariot makers potters and
ten other trades,
builders (masons) goldsmiths
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.
Abbot by Count William of Mortagne, authorizing him to
establish windmills in a certain area. This is the first
historical mention of windmills.  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.  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.  These early grants of privileges
were not necessarily for inventions and did not all result
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. 
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
10. Frunkin, The Origin of Patents, 27 J. P. 0. S. 143
11. Id. at 143.
12. Gornme, Patents of Invention 5-6 (1946).
13. Id. at 6.
to persons claiming knowledge of millwork and ship design
and probably to many others. 
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.  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.
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.  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. 
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).
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. 
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. 
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. 
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.  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,
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. 
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.  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. 
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. 
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.
manufacturing. These were group monopolies and were never
granted to one person. 
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. 
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  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
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
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).
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.  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.  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. 
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.
… 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
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.  In
1336 two weavers from Brabant were given similar letters to
settle at York,  and other cloth workers from Brabant
settled in London and Bristol with such letters.  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 
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. 
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
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).
was the beginning of a deliberate and vigorous policy to
expand English industry which Edward III and his successors
pursued with excellent results.
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. 
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. 
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. 
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.
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).
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.  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.  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.
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.  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. 
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.  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
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.
 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.
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.”
 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.  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. 
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.
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. 
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
… 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. 
Smyth received a monopoly privilege for twenty years, under
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
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
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. 
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  by a special
In the preamble of a statute of 1555  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
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).
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. 
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.  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.
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
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.  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  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
62. Fox, op. cit. supra note 27, at 61, 67.•
63. Id. at 67-8.
their competitors.  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
 and such grants were attacked most vigorously in the
Parliament which passed the Statute of Monopolies. 
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.  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.  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
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.
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. 
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.  This was the first of a long line of
70. Gomme, op. cit. supra note 12, at 9.
71. Hulme, op. cit. supra note 35, at 145.
monopoly licenses granted during the years 1561 to 1600. At
least fifty-five  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 : 
white soap Spanish leather
house to house
making water supply
dredging machines salt
alum grinding machines
water drainage corn mill
machines iron tempering
ovens and furnaces dying and dressing vinegar
mining of gold, sil- mine drainage
ver, tin, lead and Frisadoes (clothes)
other metals and knife handles
ores earthen fire pots
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. 
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.
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.
VI. THE LEGAL CONSEQUENCES OF ELIZABETH'S GRANTS
Analysis of Elizabeth's Grants
The Elizabethan grants may be divided into four main
categories.  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
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. 
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.
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.  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
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.  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
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.  Today a
patentee obtains the sole privilege to vend the invention in
addition to the manufacturing privilege.
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.
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
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).
S altpeter had not been produced in England, most of it
having been imported via Antwerp, a port controlled by the
Catholic King of Spain. Elizabeth bargained with Gerard
Honricke, “an almayne Captain,”] to come over and teach her
subjects the art of making saltpeter as good as the product
from beyond the seas.  Saltpeter was used to make
gunpowder and Elizabeth was greatly concerned with the
production of military supplies at this time.  It is
doubtful if Honricke was required to reduce the secrets of
the process to writing before the bargain was struck but it
was an express condition of the agreement that he was to
disclose the process in writing before he received the
promised reward of £300. Honricke was probably not the
inventor of the process. Upon his arrival in England, the
Queen assigned the contract to Cockeram and Barnes, who were
London merchants.  The English apprenticeship clause
was, of course, to be found mainly in those patents granted
to foreigners, just in case they left the country at or
before the expiration of the patent term. 
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
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.
This patent was clearly illegal, particularly after its
reissue, because the production of starch from wheat bran
was not novel! '
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.  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. 
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
88. Id. at 50.
89. Hulme. op. cit. supra note 82, at 313.
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.
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
3. No one else had petitioned the king for the same
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
91. Id. at 316.
first in English history and no others were submitted until
that of Nasmyth a. hundred years later.  Today, of
course, the provisional and complete specifications are an
accepted part of British law.
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
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,  had to
refund the money at once if he did not complete his
installation and make it work within six months.  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. 
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).
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
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. 
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. 
96. Pox, op. cit. supra note 74, at 81.
97. Id. at 70.
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. 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,  which was refused a patent because of the
injury it might have done to the hand knitters.  Lee
subsequently took his stocking frame to France, where it was
accepted and patented. '
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. 
In 1599 the Merchant Tailors' Case  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).
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. 
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.  As late as 1603 actions
against Darcy were prohibited  but in the Easter Term,
1602, Darcy made the disastrous mistake of bringing an
action himself against an infringer  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.  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).
In 1603 James I acceded to the English throne and in 1605
the Case of Penal Statutes  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  and the Case of King's
Prerogative in Saltpeter  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).
tain monopolies, but many were still existent and
widespread abuse was common. 
In 1615 the case of the Clothworkers of Ipswic  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. 
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.  The
following year a great debate was waged in Parliament over a
patent for inns and by 1621 complaints about monopolies were
extremely widespread. 
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.
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. “ 
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. 
Agitation in Parliament continued and on May 25, 1624, the
Statute of Monopolies  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.
 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.  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. 
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).
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.