The Beginnings in Venice
Patents under the Mercantile System
Intellectual Property in France
Intellectual Property. in America
1469: Patent of John of Speyer
1474: Patent Statute
1545: Intellectual Property Statute
1536: Privilege of Etienne Turquetti
1551: Patent of Theses Indio
1699: Examination Statute
1711: First Design Property Statute
1744: Second Design Property Statute
1762: Statute on rights arising from patents
1767: .Diderot on intellectual Property
1776: Abolition of the guilds
1779: Re-establishment of the guilds
1787: Third Design Property Statute
1790: Industrial Property Statute
1672: Mercantilist Rule in Connecticut
1672: Intellectual Property Rule in Massachusetts
1783-6: Preambles of Copyright Statutes of the States
1787: Proposals for Constitutional Patent Clause
1813: Jefferson on Intellectual Property
Letter to Isaac McPherson
Many modern writers are inclined to consider the English
Statute of Monopolies as the only important antecedent
of existing patent laws . However, we find
occasional remarks that the patent laws of France, along
with those of England and the United States, are
branches of a single system of jurisprudence , and
that they all go back to a system of privileges,
developed in Venice .
When investigating this, we actually find that for
centuries before the American and French Revolutions of
1787 and 1789, France had a patent law, at least as well
developed as the parallel English law , although
industrially, England was much more successful than
France; and we can trace the French and English systems
into one that grew up in the Republic of Venice, between
1450 and 1550 .
instance: Robinson on Patents, 1890, vol. I, p. 15; in
Germany: M. Wassermann, D. Pat. R., 1910, p. 5; in
Italy: E. Piola-Caselli, in Dig. Ital., under Privative
Industr., 1913, p. 8.
Phillips. Law of Patents, 1837, p. 27.
Lehrbuch d. Pat. R., 1908, p. 2; E. Luzzato, Tratt. Gen.
d. Privative Industr., 1914, vol. 1, p. 20-27.
4. E. Blanc,
Contrefacon. 1838; Isambert, Anc. Lois Fr.; J. Isore, in
Revue Hist. de Dr. Fr. et Etr., 1937, p. 94; Malapert,
in Journal des Economistes, 1878; J.-B. Montfalcon,
Hist. Mon. de la Ville de Lyon, vol. 2, 1866; E.
Pouillet, Dessins, 1903; Recueil des Edits et Decl.,
1776; A. Renouard, Brevets, 1825.
Veneto; Atti e Mem. del R. 1st. Veneto; Horatio F.
Brown, The Venetian Printing Press, 1891; B. Cecchetti,
Vetraria Veneziana, 1874; R. Fulin in Archivio Veneto,
vol. 23, 1882; F. C. Lane, Venetian Ships and
Shipbuilders of the Renaissance, 1934; N. Stolfi, Prop.
Lit. et Artist., 1916; G. Zanetti, Dell’ Origine di
Alcune Arti Princ. appr. i Veneziani, 1841.
The early patent documents of Venice and
presented herewith, in English translation. On
the basis of these documents, supplemented by the
well-known English statutes, we can hope to get a better
approach to our own patent system.
Such a historical approach has more than purely
scientific interest. There are several obscurities in
our constitutional patent clause ; and the formative
period is so devoid of records concerning this clause
 that extrinsic evidence, from foreign sources, has
distinct significance for a proper construction of the
The Beginnings in Venice.
The Republic of Venice  was the dominating
of the world from the year 1000 to 1500, roughly speaking.
She had started in obscurity, about 500; had grown
by fishery, and later by
commerce; acquired the Adriatic;
established trading rights
and colonies, by contracts with
the Saracens, during the crusades; joined the Franks in
occupying the Byzantine
Empire; preserved most of her
vast possessions in bloody
wars with Genoa; and finally
occupied a great part of the
rich plains and towns of northern Italy.
she largely monopolized the trade between Europe and the rest of
the then known world. At that time, and for about hundred-fifty
years thereafter, her power and wealth was great. A pictorial
record of it is preserved in the paintings of the Bellinis,
Carpaccio, Palma Vecchio and Titian. Industrially, the Venice
of the Renaissance was leading in the fields of shipbuilding,
glassware, lace, and book-printing. The government of the
republic was, for almost a thousand years, in the
6. Robinson vol. 1 p. 13-15 (full text); E. W. Hulme, 16 L.
Q. R. p. 52-56
(discussion); Wm. H. Price, The English Patents of Monopoly,
p. 135-141 (discussion).
7. Art. 1 sec. 8 par. 8.
K. Penning, 11 JPOS 438.
9. H. F. Brown, Venice, 1895; W. C. Hazlitt,
Hist. of the Ven. Rep., 1860;
P. Molmenti, Hist. of Venice, transl. by H. F. Brown, 1906-1908;
Romanin, Storia Documentata di Venezia,
hands of an aristocrat minority, excluding but
not exploiting the people.
All this sank into oblivion, gradually, after
the discovery of the sea route to the East, around
the Cape of
Good Hope. The memory of Venice was even more
deeply obliterated after the colonization and
rise of America. Previously, however, Venice had left a
imprint on the political, legal and cultural
In Venice as throughout medieval Europe, most
of commerce and the arts was dominated by guilds
. A guild was a group of masters maintaining a monopoly
their trade . They effected this by fixing prices and
standards; trading collectively with other
groups, including the taxing powers; defending their trade
masters elsewhere, and against laborers and
everywhere; and providing some security for
disabled members of the guild. In early times,
security function had been well in the
on, the regulation of prices, standards and
the main function of the guilds. This line of
was approximately the same in Venice as in all
countries, but reached a mature stage at an early time. Furthermore,
in Venice like most other states, other than
England, the guilds were gradually degraded to state-supervised,
administrative agencies. Complete state
control was established in Alexandria about 100 B. C.;
in Constantinople about 800
A. D.; in Venice about 1300 ;
and in France about 1650.
Even when fully controlled, the guilds were
sharp conflicts with the state. Above all, the problem of
foreigners was contested. Like England ,
of Venice invited strangers at an early time
1350, citizenship was thrown open to all who had resided
10. Ashley, Introduction to English Economic History, 1923, Vol.
67-123 and Literature cited; M. St.-Leon, Hist.
des corp. de métiers, 1922;
G. Monticolo, I capitolari delle arte Veneziane, 1896-1914;
I p. 61; vol. 2 p. 389-391. 11. H. See, Economical and Social
Conditions in France, 1927, p. 131.
12. Hulme, 12 L. Q. R. p. 142, 143.
13. Molmenti vol. I p. 104, 120; Romanin vol. I p. 122.
in Venice a certain number of years ; a
very wise and
unusual law. The guilds, on the other hand, were always
opposed to strangers.
The State attempted to promote the arts in a
ways, in addition to encouraging the entry of foreigners,
and regardless of the general
policy which allowed and
even forced the guilds to
remain stationary. As early as
1332, Venice maintained a
special privilege fund, as
shown by a document of that
year , reciting a payment
from that fund to one
Bartolomeo Verde, who had
promised to erect a windmill.
Verde had six months to
complete his installation and
to make it work. On failure to do so, he had to refund
the privilege money at once; otherwise, within 12 years. He had to furnish security.
Verde was not necessarily the
first inventor of this kind
of mills. He was probably the only one who knew how to build them, and
the government hoped to spread and promote
this knowledge. Payments of the same kind were
repeatedly made in the
fifteenth century, to persons claiming knowledge of either
established  or new  systems of millwork ; the
same as to designers of new or improved types of ships , and
probably to many others.
Such financial aid was one of the early forms
of recognition for new arts. Under the guild system, all such
recognition was different,
and in some respects had to
be different from what it is
in a free economy . Whoever
proposed new technology needed, in the first place, a
specially created power or
license to infringe existing guild monopolies by making,
selling or using the new
invention. Such specially created rights were called
privileges. They were not,
originally, exclusive rights. They
were granted and revoked by the state, depending
on what was deemed to be
useful. Novelty and inventive-
14. Molmenti vol. 1 p. 172; G. M. Thomas in Archivio Ven. vol. 8
156; 13. Cecchetti in Archivio Ven. vol. 29
p. 29, 30; Romanin vol. 3 p. 350;
vol. 6 p.
15. Zanetti p. 68, 69 (full text); B. Cecchetti in Archivio Ven.
vol. 29 p.
16. Cecchetti in Archivio Ven. vol. 29 p. 283-285.
17. Cecchetti in Archivio Ven. vol. 29 p. 292.
18. Lane p. 56-58; 64-70; 109.
19. Hulme 12 L. Q. R. p. 141-150; Renouard p. 102-105.
ness were investigated, at best, in an
incidental way; the
main requirement was utility. Disclosure took place by
actual use, rather than by the filing of a
in a public office. The privilege did not necessarily
go to the first inventor or importer of a new
art; sometimes it was thrown open to the public. This
for instance, in 1301, when Venice “conceded to everybody the making of glasses for the eyes, for
such glasses had been invented abroad, a short time before,
and a statute of 1300 had expressly prohibited the glass makers’
guild from making or selling them .
The epoch-making invention of typography  collided
with guild monopolies
wherever the guilds were strong. In Florence, the guild of the copyists and calligraphers
showed active resistance in
1474 ; and in Augsburg, the
wood engravers had to be
bought off, in 1480 . No guild
resistance is recorded in the
Annals of Venice. When John of Speyer, a German printer,
established himself on
the Lagune, in 1469, he obtained, not only a privilege
or right to print, but an actual patent, an exclusive right,
without opposition .
This was the first patent of monopoly preserved
actual records of Venice, so far as known at
present. There is a remark in John’s patent that it was “usual”
to grant such monopolies; but no earlier grant
kind is known, at present. It may be noted in
that such a “usual” procedure, in Venice, had
of customary law or common law .
A few years later this customary law was.
by a written pronouncement , in the nature
of a statute
or administrative decree. This was the first written patent law known. It preceded the English
Monopolies by 150 years. It was more modern,
20. Cecchetti, Vet. Ven., p. 13.
21. Cecchetti in Atti 1871-2 p. 1692-3.
22. J. C. Oswald, A History of Printing, 1928.
23. Brown p. 34.
24. Oswald p. 50-53; 314-5.
25. Below, p. 750.
26. E. Besta, Atti 1896-7 p. 404-419.
27. Below, p. 750.
it provided for patents as a matter of right
principle, not merely of royal favor.
It seems that, by custom and usage in Venice,
inventions were officially examined to some extent, before a
patent was granted. Experts were heard .
The procedure was probably based on interviews rather than on
a record and specification in writing. This
is understandable, since the bulk of the patent business was small. A
substantial number of patents and numerous copyrights
were granted in Venice
between 1500 and 1550. In some
patents, like that of Andrea
Brugone for printing in red
and black, in 1568 the
authority found it necessary to say: “While we have not
seen any plant or model in this matter,
so long as the applicant achieves what he claims, be
it granted etc.” . Apparently a guild whose pre-existing
monopoly was affected had a right to be heard. Fransesco
Zamberlan, who obtained a patent for certain
types of mirrors in 1572, had
to prove to the guild how
new they were . This
practice, probably of very early
origin and stemming from the
times when the guilds had been strong, remained in effect until
the fall of the republic,
as shown by instances of guild opposition in Venice at
the end of the eighteenth century .
When novelty seemed questionable, a patent was
necessarily denied, although this happened, for
to Girolamo Magagnati, who claimed “a new
made by himself, relating to glass and
1554 . Sometimes a remark of caution was added; for
instance, when Jacopo
T.Ungaro in 1513 claimed the “useful and ingenious invention… of printing musical
notation,” this was “conceded
as applied for, without
prejudice to concessions
which may perhaps have been
made before . A patent
for “musical notation” had
previously been issued to
Ottaviano dei Petrucci .
28. Brown, p. 98.
29. Brown, p. 98.
30.. Cecchetti, Vet. Ven., p. 25, 26.
31. Cecchetti, Vet. Ven., p. 17, 30, 31.
32. Cecchetti, Vet. Ven., p. 26.
33. Stolfi, Appendix, No. 44 (full text).
34. Stolfi, Appendix, No. 40 (full text).
More frequently, a patent or copyright was
a shorter period than applied for ;
according to principles
no longer known in detail.
Undoubtedly, patentability was not lost upon
public use, by the inventor, of the invention. In fact it seems
from the wording of the patents that some use, and proof of
utility, preceded the patent grant as a matter of course.
Two early instances of patent or copyright
enforcement are known. In 1499, Antonio Moretto,
holder of a
copyright of 1498  obtained a decree of the
Ten, the supreme authority of the republic, “enjoining
everybody that his copyright should be respected’  In
1502, Aldus Manutius, the holder of a patent
of 1495  obtained a similar decree , in support of his
Venice as well as in the republic of Florence,
Inherent property rights in an invention,
the administrative grant by the state, were
recognized, so far as the documents show. Even the patents of the earliest time were not always
treated as inheritable property, but rather as strictly
personal rights. This is illustrated by the fact that upon the
death of John of Speyer, in 1470, a notation
was added to
his privilege, in the book of records:
“Invalid, the master and author died” . His brother and
continued his business, but had no benefit of
the unexpired part of the patent term. Again, in 1517,
of Aldus was made available to the public, upon
death , although his firm continued. On
the other hand,
in 1513, a patent of Democrito Terracina, relating to
Arabic print, was transferred to his nephews
and heirs .
No express license contracts are known from this early
time. However there is
evidence that at least oral contracts must have been made. Aldus allowed certain
Fulin p. 90.
Fulin, Appendix, No. 86.
Fulin, Appendix, No. 92.
Stolfi, Appendix, No. 4 (full text).
Stolfi, Appendix, No. 3, 41, 42 (full text); Fulin, Appendix,
40. Brown p. 10; Fulin p. 89.
41. Fulin, Appendix, No. 213 (full text).
42. Brown p. 42.
printers to use his patented style of greek
type , while complaining bitterly of
In general it appears that the early Venetian
operated in rather modern ways. They opened
establishments in other cities  and took out copyrights on an
international scale . For the first eighty
were free from guild interference and state
and operated in purely capitalistic ways.
They even developed toward the point where the continuity of technological development - the opposite of guild
was appreciated, as shown for instance by the
at least one of these printers, Roccho
a plurality of successive improvements on printing
frames, 1516 and 1551 .
The exact nature of some of the early patents
is doubtful, due to the lack of complete details. As
to John of
Speyer, it is contested  whether he was recognized as
first importer of the whole art of typography
, or as
inventor of improvements . The patent to
Aldus, covering greek and italic types, may be considered
as a design
patent ; at least it is a borderline case if
classified as a
mechanical invention. Other patents were more
mechanical. Some of these were mentioned
may add: a patent to Nicolo Vlastos, a partner of Aldus,
in 1498, for “greek letter types united with their accents” ; that is, probably, with provision
insertion of the accents, reducing the number
types from several hundred to a few dozens. Further a
somewhat similar patent to Daniel Bomberg for
types with vowel signs . Ugo da Carpi took
out a patent
in 1516 for woodcutting in chiaroscuro , and Antonio
43. Brown p. 43-45.
44. Brown p. 48.
45. Brown p. 44 etc.; Oswald p. 105, 112-3; 121 etc.
46. Stolfi p. 20.
47. Brown p. 98.
48. Brown p. 6, 7.
49. “There has been introduced… by…John…”
50. “It is made more celebrated and frequent by…John…”
51. Brown p. 55.
52. Brown p. 98.
53. Brown p.’98, 103.
Guardano obtained one in 1538 for a “new
printing music” . In 1593-4 we find a patent to Galileo
Galilei, covering a pump and
water distributing system . Still
other patents are known to have issued to glass
makers in 1507 , 1719
, and 1739 . The last of these,
relating to a material to
improve the glass mixture, was
revoked when a competitor of
the patentee brought proof
that novelty was lacking . Still further details probably
could be found, either in the original records in Venice, if
they are still in existence
after the second world war, or in
books on the various arts
that flourished in Venice.
As mentioned, Venice granted copyrights as
patents. Around 1500, copyrights were granted indiscriminately,
for new and old books. Gradually, it was realized that it was a
necessary “condition that something was innovated for the use of
the scholars” . In
1517, a general copyright
statute was enacted ; the first
of its kind. It required a
new book, just as the patent
law of 1474 had required a
new invention. Trade marks
were never officially recognized by the republic of Venice;
that such a mark may
constitute an interest worthy of
protection was not generally
understood as yet, and was
appreciated only by
originators of trade marks, like
Aldus . Like later in England , patents developed
prior to trade marks.
It is remarkable that an embryonic
recognition of intellectual
property should appear in those early times. A
statute. of 1545  pointed in this way. It
author, as against the publisher; and it put the author’s
heir on a par with the author himself. If
Venice had not
started to decline, about this time, it could be fairly as-
54. Brown p. 108.
55. Federico, 8 JPOS 576 (full text).
56. B. Cecchetti, Vet. Ven. p. 26.
57. B. Cecchetti, Vet. Ven. p. 27.
58. B. Cecchetti, Vet. Ven. p. 32.
59. B. Cecchetti, Vet. Ven. p. 33..
60. Fulin, Appendix, No. 211.
61. Stolfi p. 26; Brown, Appendix 1, No. 1 (full text).
62. F. I. Schechter, The Hist. Foundations of the
Law Rel. to Trade
Marks, 1925, p.
63. Schechter p. 101-145.
64. Below, p. 750.
sumed that a law fully recognizing
in inventions and other creations would have been enacted, and taken over by other countries.
Actually, Venice declined, commercially and spiritually. The
beginnings of copyright were stifled when Church
and State censorship took over
. In 1548, the printers
were forced into the
straight-jacket of a state-controlled
guild , for more
convenient censorship, aside from a
general policing of the trade,
in Venice  as elsewhere .
When Venice had been strong, streams of
and Asiatics had converged in that
cosmopolitan center. With her decline, a general movement in the
direction became more pronounced. It brought
technology, together with the institution of individual
patent monopolies, to the other states of
Europe. In most places, the patent system was
almost exactly as developed in Venice.
said to have added a system of yearly taxes on patents.
All of the basic patent rules developed in Venice were
preserved in the subsequent systems, down to
and including our present American system.
Patents under the Mercantile System.
For some time, France absorbed a major share of
migration of artizans from Venice, and profited
by it. The night of St. Bartholomew, in 1572, and the extreme
religious intolerance that prevailed in France
revolution, forced the greater number of
and inventors to flee to England, Holland and Germany,
robbing France of greater potentialities than a patent
system could create. The patent system was there, and
there was a distinct readiness, on the part of
to encourage inventions; but inventors, as human beings,
were deterred rather than
65. Stolfi p.
66. Stolfi p.
28; Brown p. 81 to end; Appendix 1, No. 11; Appendix 3.
68. Sto1fi p.
69. Luzzato p.
Inventions were officially encouraged in almost
same manner as in Venice. Of course, in
monarch was only a puppet of the nobility. In
the nobility fought a losing battle with the crown, frequently siding with the guilds. In England, a
similar battle resulted in manifold
the overall result that guild monopolies disappeared
sooner while nobility and monarchy prevailed longer,
and a free economy was established sooner. Both in England
and in France, the crown gradually adopted the
systems that the nobility had used successfully in Venice. The
sum total of these systems is known as Mercantilism. 
The mercantile policy as to foreign trade was
directed towards an excess of national exports
over national imports. State-regulated manufactures
and commerce were envisaged to this end. Interiorly,
the system consisted mainly in grafting state control upon the
guild organization. Many administrative tools of
the mercantile system were imported from Italy.
privilege of monopoly was one of them. Patents are an
eminently Mercantilistic measure.
In following these policies, the crown was
conflict with the guilds, in major questions of
religion, and foreign policy. Similarly a
everpresent in the relatively remote field of
new inventions. Mercantilism favored some innovations
, by patents
and otherwise. The guilds were generally opposed. As in Venice, inventors required a state-guaranteed license to use their inventions, infringing some
It appears that the general pattern for the
early privilege system was the same at all places: new
was offered to the state; the state frequently
was well disposed towards it; the guilds generally opposed it;
when a. privilege was granted it was often by
compromise with the guild. In Venice, the guilds
70. E. F. Heckscher, Mercantilism, 1935, 2 vols.
71. Heckscher vol. 1 p. 141, 170.
to decline at .a relatively early time, and
thus we find only
some traces of such compromise procedures, in the
surviving records. In France, a more complete picture
The privilege procedure of France involved a
proceeding before the Parlement de Paris. The
local parliaments of France, and mainly that of Paris, represented the clergy and nobility . They had exercised considerable
legislative, administrative and judicial power, in
the thirteenth .century.
Practically throughout the old
regime, which ended in 1789,
the laws, decrees, and other
legal acts of the king,
including patents, had to be registered
by the Parlement de Paris, in order to acquire
binding force. Starting in the fifteenth century, the, exponents of royal
absolutism began to reduce the parliaments to mere rubber
stamps, sometimes using measures
such as banishment or
imprisonment of the parliament
as a whole. However, the
theory and institution of parliamentary
registration prevailed until the end.
In 1536, Francis I of France occupied Piemont,
of the highly civilized states of northern
Italy. In the
same year, Etienne Turquetti from Piemont obtained a
privilege for the production of silk from the municipal
government of Lyons in France, with the
consent of the
king . Previous attempts had been made, for almost a
hundred years, to transplant , this art into
fact, guilds of silkmakers had been created in
French towns, starting in. 1466. These earlier
had failed. Turquetti’s privilege calls him
the “inventor” of an art. As in the case of John of
Speyer, it is
questionable whether his actual claim went to
the invention of a new, improved system of organizing
this complicated field, or to the introduction of a
from abroad. Lyons gave Turquetti less than a
complete monopoly. It gave him the right,
for his life, to collect royalties from all
silk makers who
would newly establish themselves in Lyons. It also gave
Fleckscher vol. 1
p. 156; F. Aubert in Revue Hist. de Droit Fr. et Etr.,
1905, 1906, 1912, 1916, 1917.
73. Below, p. 751.
him, and the foreign workers whom he imported, loans, exemption
from taxes, and other aid. His privilege contained elements of
the early, non-exclusive type, but it approached the scope of a
monopoly patent by virtue of the right to collect royalties.
The official papers say that Turquetti lived to see 12,000
persons employed in the industry that he had created.
The first regular monopoly patent in Francewas granted in 1551,
to another Italian, Theses Mutio from Bologna, for glassware
according to the manner of Venice . In the same year, we
also find a patent of monopoly to a French inventor, Abel
Starting with these patents of 1551, considerable details are
known about patents and patent procedure in France, and we find
that the patent procedure at that early time already was a
differentiated and detailed one: Thus it is probable that
individual patent privileges of some kind were known and used
before. However, it is improbable that they had monopoly
character before and even around 1536, except possibly in some
particularly important cases like Turquetti’s. The earliest
legal import monopolies of England, and. probably of France,
were collective rights, granted by Parliament to importers’
guilds, as against domestic guilds ; an individual import
monopoly was declared void in 1362 . Furthermore we shall
find that the French procedure existing in 1551 provided good
machinery only for the setting up of the earlier, nonexclusive
privileges, based on compromises- between a guild, an inventor
or importer, and the crown. Finally it seems that other
European countries made inventors’ privileges exclusive about
this same time. In Germany, monopoly patents turned up about
1545 . England learnt the same institution in 1559 from
74. Below, p. 751,
75. lsore p. 104.
76. Ashley, vol. 2 p. 102-113.
77. See the case cited in Darcy v. Allein,
1602, 11 Coke R. 84-b.
78. R. Meldau as cited byIsorep. 105. No title
is given by Isore. Probably
details can be found in R. Meldau, Hauptwurzeln des D. Pat. R.,
in V. D. I. Arb. Gem. Technik-Geschichte,
Schriften-Reihe, Vol. 26, 1937 . I was unable to get this book.
Giacomo Aconcio, a fortifications engineer from
better known as a humanist and fighter for
We may assume that Turquetti, Mutio and Aconcio knew the
institution of monopoly patents from the practice of Venice,
which had spread to the rest of Italy, rather than that they
invented the system themselves, or found it existing in their
new domiciles. However, the Venetian system was not adopted
without change. The first change was that it merged with the
existing local system of nonexclusive privileges. The French
patent grants of the sixteenth century conveyed to the patentee
the “privilege to operate according to his invention” ,
together with the new feature that all others were “prohibited
from copying” his methods .
Between 1550 and 1600, patents of monopoly were granted in
France at the average rate of one every two years . For
comparison, we find that England, in the same period, issued
about one patent of monopoly per year ; or possibly some
more . This includes, of course, the various illegal
patents which finally gave rise to the Statute of Monopolies.
The smaller number of patents in France was probably a result
of two facts: fewer inventors appeared in this intolerant
kingdom; at the same time, there was a more thorough and
continuous parliamentary interference with the free granting of
While Mutio’s patent, as granted by the king in 1551, was to run
for ten years , we -find that it was registered by the
Parlement de Paris for only five years . In frequent cases,
until the revolution, patent terms were shortened by the
Parlement; modifications were imposed, particularly in favor of
guilds ; and sometimes the
79. D. S. Davies, 50 L. Q. R. p. 99 and
Literature cited; Erich Hassinger, Studien zu James Acontius,
1934, p. 1-20.
80. Isorep. 106, 107.
81. Isore p. 114.
82. Isore p.,104.
83. Hulme, 16 L. Q. ‘R. p. 52.
84. Davies.,1 50, L. Q. R. p. 86.
Below, p. 751.
86. Isore p.
87. Isore p. 103, 118, 120; Malapert; G. Fagniez, L’Economie
Sociale de la France sous Henri IV, 1897; p. 77-163.
royal patent was altogether denied by the
Parlement . Plainly,
we have here a patent system with opposition
proceedings, of a medieval
Before the Parlement obtained a chance to see a patent
application, an ex parte proceeding took place. This was
centered at the royal court. The king, through his council,
issued a letter of exclusive privilege to the alleged importer
or inventor of a new art or machine. In this stage, probably,
political support was as essential as a meritorious invention.
In fact, it is not known that the crown examined the merits of
an application at all, about 1536 and possibly for hundred years
thereafter. It is possible that the king was .motivated merely
by the representations of some nobleman, like the one who
presented and .supported Mutio. However, in 1666, Colbert
established the Academie des Sciences, following the example of
various Italian academies founded in the 15th and 16th
centuries, which in turn had been modelled after ancient
examples. In France  as well as in England  the kings
now started to consult their scientific advisers, on patent
applications, thereby adding the- system of official examination
to the pre-existing opposition practice. In 1699, the French
academy received regulations, by a .decree of the king, which
contained the first written law, anywhere, incorporating an
examination system .
The basic defect of this law was merely that it was not
obligatory. While it was usual for the king’s council and also
for the Parlement to consult the academy, no such consultation
was strictly necessary for either .
When a. royal letter of privilege had been granted, an attorney
presented it to the Parlement. Special examiners were then
appointed by the Parlement, to investigate the “value” of the
invention, in consultation with the various officers of the
crown who were in charge
88. Isore p. 121.
89. Historie de l’Academie, 1699, p. 119, 148,
90. Davies, 50 L. Q. R. p. 106-108.
91. Below, p. 752.
92. Isore p. 125.
of guilds, commerce and taxes . While the academy
scrutinized novelty and “utility” of the invention, the
Parlement was most interested in the competitive chances and
prospective tax value of the proposed enterprise, to be based on
the privilege ; in other words, the future commercial
success of the invention was discussed in this opposition
procedure. This ill-conceived system remained in effect until
the revolution. A paper .published in the revolutionary era
speaks of the then existing system of patent examination by “the
learned bodies and fiscal aids”; it states that such an
examination necessarily leads to corruption . We know now
that this is not necessarily true. The true fault of the system
was that it gave consideration to the commercial chances; the
technical merits of inventions should have been scrutinized
The terms of the patents, as registered by the Parlement, varied
between 5 and 30 years . In 1762, a statute fixed the term
at 15 years .
The patents issued after 1551 had property character .
Sometimes they contained an express grant to the inventor, his
heirs- and assigns . The very earliest patent in France, as
mentioned, had been a personal grant for the lifetime of the
patentee, similar to the patent of Aldus and others, in Venice;
also similar to the still earlier, non-exclusive privileges,
which in all probability had been personal and not transferable,
according to the general civil-law jurisprudence of special
The statute of 1762 limited patent transfers, in the interest of
prompt utilization of patents . Mercantilism had inherited
the principle of strict regulation from the guilds; thus it is
not surprising that patent property,
Isore p. 120, 121; Heckscher Vol. 1 p. 152-155.
94. Isore p. 122.
95 De Boufflers, Report of 1790, in French Patent Reports,
Vol. I p. 57-74 (full text).
Isore, p. 115.
97. Below, p. 753.
Isore p. I09.
99. Isore p. 114.
100. Below, p. 753, 754.
like other property, was impressed with social obligations, and
subjected to administrative interferences. The practice had
started in Venice ; it continued under the king of England
, the king of France , and the Parlement de Paris
. Sometimes the price at which the patentee could sell his
goods  was fixed by the king or added by the Parlement.
Compulsory licenses  and working obligations  were
known. The statute of 1762 provided generally that a patent
should lapse if the patentee, for one year, had attempted,
without success, to put it to use, or had failed to use it at
all; subject to a right of the patentee to show good causes.
Our main source for these details is a record
of, parliamentary registrations, kept by the
and his’ successors ; along with the patent drawings
and specifications, approved by the academy between
1666 and 1735, which were reconstructed by M. Gallon;
on the basis of the models preserved by the
These records Gallon and LeNain constitute, respectively, a Patent Gazette and a set of
Commissioner’s Decisions under the old regime of France.
They reflect a patent system containing all basic elements of
our present one; including medieval reminiscences, such as the
examination as to “utility” and commercial success; and omitting
only one essential feature - the legal right of an inventor to
claim for a patent. This right, and somewhat more than it, grew
up in the French law of the pre-revolutionary era, 1700 to 1789,
starting with a relatively small and unobtrusive development in
the city of Lyons. It was here that inventions were recognized
as inherent property, not merely subjects of administrative
grants that could be given or
101. Brown p.
50 L. Q. R. p. 100-105.
103. Isore p.
104. Isore p.
105. Isore p.
106. Isore p.
107. Isore p.
108. Below, p.
et Inventions Approuvees par l’Acaclemie, 7 vols., 1735 to 1777.
refused. This recognition was incorporated in
reflecting a legal concept, first by
implication, and later
in express and even emphatic terms.
Intellectual Property in France.
Lyons is one of the oldest and largest trading centers of
Europe. Located between Paris and Marseilles, it handles most
of the goods moving between the Mediterranean and the rich
country of France. Thus it is understandable that this town
preceded the rest of France in adopting the system of monopoly
patents, and again, in developing a new doctrine of industrial
For centuries before 1711, the year of the first design property
statute , embroidered silk from Italy and the East, largely
imported through Venice, for the clergy, the nobles and the
kings, had been among the chief staples sold and bought in Lyons
. The domestic production of silk, after Turquetti’s
privileged enterprise of 1536, had hard and easy times in
succession, and finally, under Louis XIV, developed into one of
the greatest textile -industries of the world. The other local
industry of importance, in fact the largest of all, was printing
and publishing . This, too, had various contacts with
Venice and the other centers of Italian civilization .
Lyons was a ville de loi, that is, a town where the local
guild system was soon and thoroughly integrated with the local
government, while mutual independence of guild and government,
for a long time, was characteristic of other towns, the
villes :jurées . This integrated guild system of Lyons
reached maturity at a relatively early time. The capitalist
system followed when the guilds declined, in Lyons as well as
London and other industrialized places.
The organization of the silk industry in Lyons was based on
homework. Large concerns, owned by “master merchants,” let the
spinning, weaving and embroidering
111. Below, p. 752.
A. Kleinclausz, I-list. de Lyon, 1939, vol. 1, p. 504; Pouillet
Kleinclausz p. 506.
Oswald p. 121; also see Footnote No. 39.
115. Heckscher p. 142-151; Kleinclausz p. 471,
work to “working masters,” who in turn employed journeymen and
apprentices. The master merchants also employed special
designers, some of whom, in the course of the years, acquired
fame and wealth . There was keen competition between the
master merchants of Lyons and those of other places in France.
Moreover it seems that competition must have been lively, and
not always fair, among the local master merchants, judging from
the early design property statutes .
In evaluating these statutes, in connection with the development
of patent laws and concepts, we must consider that the idea of
“stealing” or “selling,” as applied, to an incorporeal and even
unprivileged “design,” was entirely new to the legal arsenal of
the time. Here it was clearly implied that such designs have
property character. With this in mind, we may call these
Thus it is quite understandable why several statutes of the
kingdom of France were necessary to fully elaborate and
implement the idea. There were five such statutes. That of
1711  was supplemented by one of 1737, adding stronger
penalties . These added penalties were suspended by an act
of 1739 . Positive and substantive additions were made by
the acts of 1744 and 1787 .
The rudimentary provision of 1711 had been directed against the
breach of -a fiduciary relationship involving design property.
This reappeared in the later acts. The addition of 1744
consisted in a general provision against violation of design
property, regardless of fiduciary relationships. The final act
of 1787 added the necessary administrative machinery, similar to
that in force for mechanical patents, for “establishing, in safe
manner,” the subjects of design inventions. It expressly
referred to design “property.” This term was new;
116. Pouillet p. 3.
117. Below, p. 752.
118. Below, p. 752.
Pouillet p. 4.
120. Pouillet p. 4.
Below, p. 752, 755.
no ‘statute of any country had used it, or any equivalent of it,
so far as we know. The actual concept, of course, goes -back to
the statutes of 1711 and 1744.
The act of 1744 protected designs “either old or new,” without
time ‘limitation. This was repeated in Article 3 of the act of
1787, while Article 1 of the same act limited the design
property to “new” designs, and to a term of 15 years.
Obviously, the legislator had no clear answer to the question
why a design invention, or any invention, can be “property,” and
the right can still be limited in time, and expire as to “old”
matter. In civil law, an estate limited to a term of years is
generally distinguished from property. Thus a bad flaw
remained, after the broad, official recognition of design
property; but historically, the important thing is that this
property was recognized in principle.
This was, at the same time, the first statutory acknowledgment
of a legal claim for protection for new inventions. In this
respect, the French act of 1787 went beyond the American patent
law of 1790, and subsequent acts, which merely stated, in
express-terms, that it shall be “lawful” for the state to issue
a patent, leaving it to the courts to say that the issuing of a
patent, under proper conditions, is a duty of the state ; the
nature of this duty being a vague and uncertain thing.
The series of design property acts had originated with the
silk-manufacturing guild, not with the government . It may
appear surprising that, of all possible groups a guild should
have instigated a legal development that culminated in the
recognition of individual, intellectual property. However, the
process can be explained. The guilds, as holders of collective
monopolies, were opposed to outside interference rather than to
innovations as such . While they inherently were not a
fertile culture ground for new developments, they did not
necessarily condemn development as such, when it did grow up
among the members themselves. Most guilds were also far from
any communist ideal, although they exercised a levelling
influence and prohibited excessive competition between the
masters of the guild. Therefore, if one
Heckscher, p. 170-176; Schechter p. 40-47; Piola-Caselli p. 7.
made and used a new design that proved particularly successful
he was quite able to become more prosperous than others; and he
did not share it with the group. If another copied the design,
without, his. consent, this other was apt to be called before a
guild tribunal. It is possible and even probable that disputes
came up occasionally, involving the infringement of intangible
interests based on new technology. Some such instances are
actually known . Similar disputes came up in the early
development of trade mark rights . However, since they
came before the tribunals of the guild, they were not likely to
be known in the law of the land, so far as the villes jurées
In the villes de loi, a guild rule was inherently a rule
of law. This is how the first design property statutes became
the law of Lyons. In view of the national importance of this
local trade they were even sanctioned by laws of national
authority. The first laws had only local scope, but the final
one was effective throughout France, as well as based on the
national legislative power.
The crown, in sanctioning the laws of 1711 and 1744, undoubtedly
did not intend to recognize industrial property in a broad
sense. The new expression “stealing” or “selling” a “design”
passed by, unnoticed by the law officers of the mercantile
system. It .merely reflected, on a national scale, an
unofficially existing tendency of thought. The opposite trend
was still prevailing at court. In fact, as late as 1776, the
king called copyright privileges a mere matter of “grace founded
on justice’ . A law of 1777, echoing this royal compromise
proposal, expressed itself against the notion that privileges
could be a matter of claims or.-property, but tried to apply
equitable principles to the granting .of privileges . It
is an ingrained notion of Mercantilism, incidentally not yet
overcome in America, that while inventions are generally useful
they differ from property
123. 13. F. Hyslop in Am. Hist. Rev. 139 P. 267; Pouillet 13:
124. Schechter p. 108-120.
125. Stolfi p. 86.
126. Blanc p. 237-239 (full text); Stolfi p. 87.
in that they may or may not be protected by the laws, as the
state sees fit.
On the other hand, from the standpoint of the silkmakers of
Lyons, in 1711 and 1744, design inventions were property, based
on achievement. Like all other property they were surely
subject to far-reaching social limitations by the guild and
state; but they were property nevertheless. The consuls of
Lyons expressed this view in a further ordinance of 1778,
promptly after the conservative copyright laws of 1777 .
The textile manufacturers of other places in France joined, in
demanding recognition of this property .
Before this standpoint could be fully and expressly sanctioned,
by the law of 1787, Absolutism and Mercantilism had to be broken
down to a large extent. This was actually done; not by the
guilds, but by a philosophical school of thought that refused to
accept the existing order of things as final.
Denis Diderot was the most outstanding representative of this
school. His “Letter on the Blind,” published in 1749, was a
smashing attack on the clerico-monarchical system. It netted
Diderot three months in prison. Between 1751 and 1772 he
published and largely wrote the “famous Great Encyclopedia.
This work “takes for granted the justice of religious tolerance
and speculative freedom. It asserts in distinct terms the
democratic doctrine… It is one unbroken process of exaltation
of scientific knowledge on the one hand and pacific industry on
the other”. [129}
One of the secrets behind Diderot’s ultimate, although belated
success was that to him, the king, the censors and the guilds
were quite dead. This made his writings peculiarly free from
all excitement of the day. It enabled him to endorse the good
points even in an institution of the old regime.
127. Pouillet p. 5, 6.
128. Pouillet p. 6.
129. Encyclopedia Britannica, “Diderot.”
His “Letter on the Publishing Trade ” was a defense of
privileges. It was occasioned by the affair LaFontaine .
The king’s council had issued a privilege to LaFontaine’s
grandchildren, for the books of this famous poet, although
LaFontaine himself had received such a privilege before, and had
sold it to a publisher, who was still in possession of it. The
publishers’ guild felt that the arbitrary procedure of the crown
was apt to make privileges worthless, and to result in final
abolition of all privileges. They entrusted their case to
Diderot, the declared enemy of monopolies. Diderot accepted.
In his “Letter,” he traced the history of publishers’
privileges in France, and justified them. The “Letter” was
constructive throughout. It argued for the original privilege
of the elder LaFontaine, not against the new one to his
descendants. While written in 1767, it was directed to a public
of 1787 and 1789; and it reached that public.
Without this defense, copyrights and patents might have
disappeared. It was not apparent to all that the fall of
Mercantilism had to be accompanied by a triumph of intellectual
property. Such property had been asserted before, implicitly in
the early statutes of Venice and Lyons, and even explicitly in
treatises and opinions [131a]. It was left to Diderot to
incorporate the doctrine of intellectual property in the broader
concepts of a free society.
Others did the necessary breaking down and clearing out.
Starting about 1740, Mercantilism was strongly attacked by the
followers of Quesnay, the king’s physician, who called
themselves Physiocrats. They postulated a supremacy of hitherto
neglected agriculture over the manufactures; also, judicial
protection of property over administrative regulation and abuse;
and national wealth at home over financial gain by export. At
first the physiocratic school gained partial recognition by the
Below, p. 754.
131. Stolfi, p. 85.
For instance Beyer, Kurzer Bericht von der
1690; J. FL von Berger, Electa Disceptationurn, 1706, etc.
king; it precipitated the end of the guilds, monarchy, and the
mercantile system .
While they considered manufacture as a matter of secondary
importance, the Physiocrats in general were not opposed to it,
and mainly not to inventions and discoveries. Quesnay was
careful to assign logical places, in his somewhat dogmatic
system, to artisans in general, and to privileged inventors in
His pupil Turgot became comptroller general of France in 1774,
under the new and feeble king Louis XVI . In the preamble of his
famous Edict of February 5, 1776, abolishing the guilds, he
emphasized the rights of inventors, as against the Stationary
character of the guilds .
Turgot failed; the edict was revoked, and he was dismissed, on
May 12, 1776. However, the stranglehold of Mercantilism had
been broken. While state-controlled guilds returned, in August
1776, they were almost as lame as the subsequent act supporting
them . Inventors needed no aid against guilds any more.
While the king called a privilege a “grace founded on justice,”
popular opinion had come to see justice alone behind such a
This was merely evidenced by the act of 1787, relating to design
property. The actual transition in the legal thinking on
patents had started about 1711 and had become irresistible after
Diderot’s “Letter” of 1767.
On July 14, 1789 the people of Paris stormed the Bastille, and
ended the old regime. This time, the guilds and the Mercantile
system disappeared for good.
There followed the act of 1790, on patents, which took the last
step to complete the development of 1711-1767 and 1787. It
applied the principles of industrial property, with
administrative registration, to inventions in general. It
restated this principle in stronger terms; probably the
strongest terms used by any such law at any time.
132. M. Beer,
An Inquiry into Physiocracy, 1939, p. 69, 70; See, p. 158-161.
Quesnay, Dialogue on the Work of Artisans, 1766.
134. Below, p.
135 . Below,
p. 755. 1313 Below, p. 756.
Now, the idea of intellectual property gained recognition in a
great part of the world.
The act of 1790 suffered from the same .defect as that of 1787;
it failed to make it clear why a right, called a property right,
should be limited in time. Another flaw was that the act
abolished the old examination system entirely. There was some
opposition on this point, during the debates concerning this act
The complete recognition of intellectual property lasted only a
few years, in France. The first step away was made when the
Constitution of the “year III,” that is, 1795, provided in
Article 357: “The law shall provide for the recompensation of
inventors or for the maintenance of the exclusive
property of their discoveries and productions” . The idea
of recompensation, otherwise than by the exclusive right, was
plainly a return to the earliest forms of privileges. This idea
was supported by Alexander Hamilton in America , and was
strongly urged, about the middle of the nineteenth century, by
Michel Chevalier in France  and Macfie in England ;
however, it failed to displace the system of monopoly patents.
A more decisive step away from the doctrine of intellectual
property was done when Renouard  and OlinPicard , the
then recognized authorities on patent, and copyrights, declared
themselves against this doctrine for the reason that the
necessary limited character of the author’s and inventor’s
rights could not be reconciled with the idea of property. As a
result of such views, the new French patent law of 1844 avoided
all reference to intellectual property. Finally, in 1887, the
highest court of France, with practically no reasoning at all,
declared that there is no such thing as intellectual property
Patent Reports, First Series, Vol. 1 p. 57:75.
138. Blanc, p.
139. Report on
Manufactures, 1791-2, Constitutional Edition vol. 4 p. 143, 197.
Brevets d’Invention, 1878.
of Patents, Recent Discussions, LondOn 1869 (anonymous).
op. cit.; also Traite des Droits d’Auteurs, 1838.
des Brevets, 1869, p. 25.
Cour de Cassation, Civ., 1887, p. 321.
The mere, hollow phrase “intellectual property” survived, while
the positive doctrine, according to which the civil law or
common law inherently created such a property in the author of a
new work, or the inventor of new technology, lost all official
recognition. This change took place almost everywhere, as the
precept was set in France. We can say, with very slight
exaggeration, that France created this doctrine during the
eighteenth century, and destroyed it during the nineteenth.
The main effect, and probably also the strongest reason of this
remarkable change pertained to the employer-employee
relationship. Intellectual property, by definition, belonged to
the inventor. When the doctrine of intellectual property had
disappeared, the claim for a patent, and title to the patent,
was suddenly found in the hands of the inventor’s employer. In
the absence of any contract, he was held entitled to all
benefits, including even the right to apply for the patent in
the firm name . The convenient excuse was furnished by the
doctrine that a right, presumably held by the inventor, cannot
be property if it is limited in time. Actually all rights of
the inventor, whether property or not, were disregarded. The
true motive was greed and shortsightedness. The patentee was
pampered, but the inventor was forgotten. It is significant
that at the same time the relative industrial strength of
France, compared with that of her neighbors, fell to lower
levels than under the old regime.
Property in America
Implied statutory recognition was given to intellectual property
in England, simultaneously with the first design property
statute of France . The first and only English act that
must be mentioned in this connection, known as the statute of
Ann, 1711, refers to the “author or proprietor” of a new work,
clearly implying that authorship establishes a property, which
can be transferred to a publisher. Obviously, this idea had
Propriete Industrielle, 1922, p. 22-31.
Hist. sketch of the law of copyright, 1840.
oped prior to the statute and was presupposed, like a notion
requiring no special affirmation. A similar implication had
been made in America, at an even earlier date. The Colony of
Massachusetts, in 1672, had prohibited the making of reprints
without the consent of the “owner of the copy” . It
appears that the same trend was strongly active in England and
her Colonies that was found in France, and that we could trace
to the Venetian statute of 1545.
In the early Anglo-American patent system we also find, of
course, statutory expressions of an unmistakably mercantilist
vein. For instance, Connecticut, also in 1672, allowed patent
monopolies only for such matters .and times as were deemed
“profitable for the country” . Here, the clear implication
was that the mere fact of invention did not necessarily give
rise to an inherent, exclusive property right of the inventor.
Of course it is possible that this mercantilist thought was
disregarded in practice; we have its equivalent in our present
“utility” statutes, and disregard it, along with many other
There is at least a potential conflict between such views as are
represented by the two acts of 1672. In England, this conflict
became actual and found a none too pointed decision in the
interconnected, leading cases of Millar v. Taylor, before
the King’s Bench in 1769 with Lord Mansfield presiding, and
Donaldson v. Becket, before the House of Lords in 1774
. The issues involved in both cases can be reduced to the
questions: (1) whether the common law recognized a. right
of intellectual property in an author; (2) whether this
right continued in existence after the publication of a work;
(3) whether this common law right went beyond certain rights
declared by the Statute of Ann; and (4) whether such
farther reaching common law rights could prevail. after the
Statute of Ann. Mansfield and the majority in Millar v.
Taylor answered each of the four questions affirmatively.
147. Below, p.
148. Below, p.
149. 4 Burr
2303 and 2408.
In Donaldson. v. Becket, the fourth point was clearly
denied by the majority: This was sufficient to reverse the
practical result. It is contested whether a majority in
Donaldson v. Becket denied the first and second point also
. This is not easy to ascertain. Nor is it very
significant. Whatever any majority in the Donaldson case
said about this first and second point amounted only to a
judicial dictum, in view of the clear and sufficient holding
about point four. The majority statement in the Millar
case, concerning the first and second points, was a true holding
and opinion, deciding a necessary issue of the case, and, is
good common law now, as well its before the Donaldson case:
Moreover, Blackstone’s first edition, completely published one
year before the Millar case, had recognized and taught that the
common law vested the author of a new work, as such, with an
exclusive right. The same view was expounded in the vast
majority of the two dozen pamphlets on intellectual property
that appeared during the era of Donaldson v. Becket
If still further confirmation of the doctrine was necessary,-it
was furnished by the state copyright statutes enacted under the
Colonial Congress . A majority of these provided that a
copyright belongs to the author of a new work, or to his heirs,
administrator or executor . This possibility of transfer
upon death is one of the main incidents of property. In ten
states, a: preamble preceded the statute. Four of these
preambles  recited in substance what Diderot had said, that
no one is so clearly the master of his goods as a man is the
master of the products of the labor of his mind. They added, in
various forms, the good old mercantile argument that the common
interest is furthered by encouraging such
Wheaton v. Peters, 33 US (8 Pet.) 591.
Solberg, Bibliogr, of Lit. Prop., in The Publisher’s Weekly,
188285; reprinted In R. R. Bowker, Copyright, 1886.
Solberg, Copyright Enactments of the United States 1783-1906,
Copyright Bulletin 3, 1906.
Cop. En:, see under Conn., Md., N. J., Pa., No. C.,. Ga. and N.
154. Below, p.
758, 759, Mass., N. H., No. C. and R..I.
labors. One statutory preamble  said that natural equity
and justice “require” the securing of such productions to every
author. Three  stated somewhat more cautiously that such
securing is “perfectly agreeable” to natural equity and justice,
and of course conducive to the public good through the
encouragement of extraordinary labors. Three had safeguarding
clauses for common-law copyrights . The sum total of these
preambles creates the impression that the common law doctrine of
intellectual property was not only known but generally
recognized, and locally considered as a most important law. The
essential items added to these established principles, by the
statutory enactments of the states, related to the term of the
copyright, the requirement and benefit of registration  and
the duty to provide sufficient editions of copyrighted books, at
reasonable prices .
Thus we can consider the doctrine of intellectual property as
well settled in the common law of copyrights, as of 1787,
although at later times, this was occasionally doubted .
It is another question whether the same doctrine is or was
settled, or tenable, under the common law as to patents .
Blackstone did not say so; no books or pamphlets asserted it;
and no English case was brought to decide this issue. This
relative silence of the law books, as to patents, is not the
only distinguishing feature. From the beginning, England
favored copyright privileges over patent privileges; mainly by
the granting of much longer terms. In order to understand this
we must go back in-history, once more.
The earliest Venetian copyrights were granted for rather short
periods. Occasionally, one of the earliest
155. Below, p.
156. Below, p.
758, Conn., N. J., N. Y. ‘
Cop. En., under Conn., Ga. and N. Y.
Cop. En., under Conn., Md., N. J., Pa., So. C., Va., No. C.,
Ga., N. Y.
Cop. En., see under Conn., So. C., No. C., Ga. and N. Y.
v. Peters, 33 US (8 Pet.) 591, Dictum in majority opinion,
v. Peters, Dissent.
copyrights failed to state a term or time limitation , and
it has been assumed that this evidenced a rule of law according
to which such privilege was granted for life or perpetuity
. However, it is more probable that the omission was due
to neglect, and that these earliest rights actually were granted
with the understanding that they would be revocable at the will
of the state. If Venice, in 1570, made authors’ copyrights
“perpetual”  this was a new development, intervening more
than hundred years after the first privilege known, and more
than twenty years after the establishment of the printers’ and
publishers’ guild. It is probable, then, that such far-reaching
recognition of copyrights was a direct or indirect result of
pressure exerted by the guild.
In England, the history of copyrights started practically
simultaneously with that of the Stationers’ Company, which was
the pertinent guild in that country. Inventors, inherently,
were always bare of any aid by the guilds, and frequently
exposed to hostile guild intervention, while authors, through
their publishers, had the benefit of representation by a large
national guild. In fact, societies stemming from that guild are
still surviving, while neither engineers nor especially
inventors, as a group, are organized in any way. Thus it is not
particularly surprising that long-lasting copyrights were
issued, while patent terms were relatively limited at all times.
Yet, this was merely a result of differential bargaining
powers, in the fight for intellectual property protection.
Inherently, there was and is no justification for copyright
terms being any longer than patent terms, or for copyright
protection being any stronger than patent protection.
Unquestionably there was no common law in favor of either
copyrights or patents, in England before or under Elizabeth.
That a common law right to copyright protection was recognized
under George III must have been
Appendix No. 5, 6:
164. Stolfi p.
the result of administrative practices gradually being condensed
into a custom, or common law.
With equal justification, a common law right could have been
ascertained, in the era of the Donaldson case, whereby an
inventor, as such, owns an exclusive right in his invention,
before and after publication thereof, in the absence of a patent
statute. No patent statute interfering with such a common law
right had intervened in England; the only pertinent enactment,
before the19th century, was the clause in the Statute of
Monopolies whereby limited monopolies for inventions were
authorized. This Statute neither required nor regulated
patents, except that it fixed a maximum term. With or without a
statutory basis, it was not usual to “claim” patents from the
crown, but to “pray” that a patent may be “granted.” In fact
these servile terms are used even now, in this supposedly free
republic. They have long lost their original connotations.
They only mean, the applicant asks the state to certify his
existing rights. This was the connotation, as to copyrights in
England, as early as 1700 or earlier. We can conclude that this
was the connotation also, as to patents, about the same time.
This analysis differs from that of the writers who consider
English common law as a homespun affair, eternally preserving
the dust of the middle ages,, and recognizing a right only if a
solemn court, on the basis of more or less pertinent opinions of
similar courts, has expressly, definitely and insistently
declared that this right, and not an iota more or less, has
existed since times immemorial, and must exist at all times.
Such a court did happen to be invoked, and did express itself,
in the Millar and Donaldson cases. What it actually did, in
finding that the common law recognizes copyright claims, was to
condense an administrative practice into a rule of law. The
same practice had been prevailing as to patents, and any court,
then or now, was and is justified in finding that the common law
recognizes similar patent claims.
The administrative practice of the English crown was paralleled
by one m the colonies, and later in the States. Patents were
issued as a matter of course .
Perhaps the strongest argument for common law patent rights
appears from two of the state copyright statutes. One of these
 included “useful discoveries” in the list of achievements,
resulting from protection of intellectual property. Another
 was still more explicit and provided : “The inventors of
useful machines shall have a like exclusive privilege of making
or vending their machines for the like term of 14 years, under
the same privileges and restrictions hereby granted to and
imposed on the authors of books.” In addition, the preambles of
several state copyright statutes were broad enough to be applied
to inventors as well as authors’ .
Therefore, it is a well supportable theory that modern common
law vests the inventor with property in his invention in the
same manner that it vests the author with property in his book,
although primitive common law recognized neither.
This theory has been rejected by no one less than Thomas
Jefferson, in a private opinion occasioned by his dispute with
Oliver Evans . Jefferson’s opinion is one of the most
plausible statements of the view opposed to common law patents,
or industrial property. However, it is largely based on
assumptions contradicted by the history of patents, namely, that
industrial property, as historically asserted, implies a
perpetual property , and that English precedent is the only
one in point .
Jefferson either wrote the patent act of 1793, or at least
influenced the underlying theories. According to this act, the
applicant for a patent had to signify, in his petition, a
“desire of obtaining an exclusive property” in his invention,
not a claim to have an existing property secured
165. P. J,
Federico, II JPOS 358 and 13 JPOS 166.
166. Below, p.
758, 759, see No. C.
Cop. En., see So. C.
168. Below, p.
758; 759, see Mass., N. H., N. J., R. I.
169. Below, p.
170. Below, p.
171. Below, p.
to himself. This language was used also in 1836. It was
changed, however, in 1870. This fact should be remembered when
the question comes up whether certain holdings and dicta in
early “leading cases” have binding. force at the present time.
The first American leading case in point  related to
copyrights. The question of common-law copyrights was
discussed; the majority was doubtful, and there was a dissent in
favor of such rights. The actual holding, is squarely based on
the statute, and nothing of binding force was said about the
common law right. Incidentally, both the majority and the
dissenting opinion remarked that there is no common law property
right of inventors. This was, plainly, a mere dictum, so far as
this case is concerned. Nevertheless, it was frequently
repeated, and cited as authority, at later times. The trouble
is that no distinction was made between common law and primitive
common law. The dictum is true only as to the primitive law.
The next leading case  related to Fitzgerald’s patent for
a. fireproof chest. While Fitzgerald’s application was pending
he assigned his rights to Wilder. Later the patent was issued,
to Fitzgerald. Wilder then sued Gayler for infringement.
Gayler denied, among other things, Wilder ‘s title. The lower
court held for Wilder. On Gayler’s appeal to the Supreme Court,
Wilder was represented by Webster, who argued on the basis of
the common law doctrine of industrial property. He prevailed;
the decision was affirmed. However, the opinion, by C. J.
Taney, reflected the doctrine in a modified form. The
inventor’s right, before issuance of the patent, was called an
“inchoate right.” Taney held that the right can be transferred
and that the transfer carries title in the subsequent patent to
the assignee. However, Taney added a dictum that the inchoate
right supports no suit to exclude others. This dictum is
plainly in keeping with those in the previous case, although the
actual holding of Taney goes away from that case. The dictum,
of course, could
v. Peters, 33 US (8 Pet.) 591.
173. Gayler v.
Wilder, 51 US (10 How.) 477.
be based also on the doctrine of Donaldson v. Becket,
although it is still a question why that case was followed in
the dictum, but apparently not in the holding. perhaps the case
can be rationalized as a further development of Donaldson v.
Becket. The Donaldson case settled the situation as to
common law rights exceeding the statutory rights in scope, to
the effect that the statutory right, alone, can prevail. The
holding in the present case modifies this, while the dictum
shows that the rule is only modified but not abolished. Somehow
it was felt that in a proper case, the common law rule can
supplement the statutory rules. The difficulty lies in finding
what is a proper case for such relaxation of the principle of
Donaldson v. Becket. It is hard to see that a recognition
of assignments entirely based on common law grounds is so much
more essential or equitable than a recognition of a right to sue
on common law grounds, as to justify the general relaxation of
the rule in favor of the former but not for the latter. The
case may come up where irreparable damage is threatened to a
party who cannot sue for infringement, on common law grounds,
prior to the issuance of the patent. In such a case, equity
should allow a suit, regardless of the unexplained dictum added,
by Taney to his law decision.
There was a dissent in the present case, which even denied the
inchoate right recognized by Taney, in very strong terms. This
extreme view has been rejected by the prevailing school of
Taney’s dictum was cited with approval in subsequent cases
, and can be said to represent the prevailing view.
Occasionally it was stretched to the point where highly
questionable results were based on it.
For instance, in one case , the Supreme Court held, on the
alleged authority of Taney’s dictum, but actually expanding it,
“until the patent is issued there is no property right in it.”
A patent had been sued upon which due to a neglect, did not
bear the signature of the Secretary of Interior. It was held
that such a patent will
instance Brown v. Duchesne, 60 US 183.
175. Marsh v.
Nichols, 128 .US 605.
not sustain an infringement suit, because it is only the patent,
in strict compliance with the statute, which creates a property
interest in the invention. This Supreme Court holding, while
paying lip service to Taney’s unexplained dictum, violates the
spirit of Taney’s actual holding. It is believed to be bad law,
and to be overruled, in effect, by modern holdings of the
Supreme Court, relating to common law principles. Congress
validated the patent involved by a special act, enacted before
the Supreme Court decision, but providing that cases arising
prior to the passage of the act should not be affected. [175a].
In an interesting case before the Court of Claims  it was
intimated that the common law of patents, like that of
trademarks, may well have gradually developed from the stage of
ignorance to that of recognition of a doctrine of intellectual
The historical facts submitted are strong evidence for such a
While intellectual property is either rejected or only
contemplated from far, by American courts, the doctrine can
claim some literary support. Common law patent rights were
definitely asserted by Daniel Webster  and at least implied
by Professor Robinson [178, aside from lesser support .
Some writers have left the question more or less open . A
majority, of course, is contented with simply repeating the
tenor of the holdings and dicta of the courts.
The result of the majority view is that the basic principles of
our present patent law are the same as those established in
Venice before 1500, in France before 1700, and in England at
some later time. According to this view we are not at the point
where Lyons was in 1711,
175a. 24 Stat.
v. U. S., 14 C. C. 396; also see Walker-Deller on Patents, vol.
2 p. 1152.
Gayler v. Wilder, 51 US (10 How.) 477; also citations in 0. R.
Barnett, Patent Property, 1943, p. 507, 508.
on Patents, Vol. I p. 15.
instance, see the anonymous pamphlet, by Oliver Evans,
Exposition of Part of the Patent Laws by a Native Born Citizen,
1816, p. 51; also Oliver Evans to his Counsel, 1813 or later, p.
48; Walker on Patents as cited 14 JPOS 236; J. L. McAuliffe 14
JPOS 258, etc.
on Patents, 8th ed., p. 4; C. J. Hamson, Pat. R. for Sci.
Discov., 1930, p. 3.
France in 1767, and the rest of the -world soon after 1790.
There is something unlikely in this view. Of course the
suggestive power of the principles enunciated by Diderot and his
followers may be diminished, in the eyes of some, by the fact
that France and the rest of the world have subsequently
repudiated them, during the decades of reaction. We, however,
are still holding to the principles of our basic laws, which are
so close to those of the French revolution. What, then, does
our Constitution mean when granting Congress the power “to
promote the progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive right to
their respective writings and discoveries?”
European observers discover a recognition of inherent industrial
property rights in our constitutional patent clause . It
may be that, if the European history of patents had been known,
the opinions of Jefferson and Taney would read differently.
It is unknown what the authors of our organic law intended,
subjectively. However, we have some aids towards a. proper,
objective construction of the document. While there is nothing
within the four corners of the document itself which tends to
interpret the patent clause, we do have a number of preliminary
drafts of the clause  in addition to the prior laws of
American and foreign states. These drafts are almost identical
with one another, so far as author’s rights are concerned,
signifying that there was no serious debate about the copyright
protection to be secured to authors. Concerning patents, these
drafts are at variance. One  fails to provide for patents
at all. Another  makes a distinction between literary
authors and inventors, rewarding inventions by “premiums and
provisions,” in accordance with Alexander Hamilton’s views.
This, as others  is vague enough to allow a construction
Michaelis, Am. Pat. Recht, 1932, p. I, 8; J. Vojacek, Survey of
the Princ. Nat. Pat. Syst., 1936, p. 7, 8.
182. Below, p.
183. Below, p.
759, No. 1.
184. Below, p.
759, No. 2.
185. Below, p.
759, No. 3, 4.
cal with the preceding draft, as well as a construction
involving exclusive rights. Still another  puts the
“discoveries” of inventors definitely on the same
exclusive-right footing as the “performances” of other authors.
The substance of this latter draft re-appears in the
Constitution as actually adopted, aside from differences of
expression. An important reference to the advancement of the
arts was added. In this respect the second draft was followed;
but while that draft authorized only “premiums and provisions,”
the Constitution speaks of exclusive rights. If these drafts
signify anything then it is, in the first place, the intention
not to do away with patents, and with exclusive rights to
inventors. In the second place there is an apparent intent, in
the clause as adopted, to put inventions on the same footing
with literary writings, so far as the power of Congress is
concerned. This is also borne out by the first and most
authoritative commentary on our clause, written by Madison
It does not follow that the Constitution elevated the doctrine
of intellectual property, or any other patent concepts, beyond
the plain terms of the clause, to the level of a basic law, the
abolition of which would require an amendment to the
Constitution. The American assembly in 1787 did not go nearly
as far in this respect as the French in 1790. Exclusive rights
of authors, and also of inventors, may exist under the common
law, and they are certainly not abrogated but only “secured” by
the Constitution; however, they do not rise to the dignity of
“Rights of Man,” according to this view. This was a step
backward, not only from the views of Diderot, but from those of
some of the State copyright statutes enacted a short time
Accordingly, Congress can constitutionally abrogate the common
law doctrine of intellectual property. So long as this is not
done, the common law doctrine exists, although a simultaneously
existing statute, according to
186. Below, p.
759, No. 5.
Federalist, No. 43,
the modified doctrine of Donaldson v. Becket, largely
inactivates this doctrine.
Another question is whether Congress can constitutionally
abrogate both the common law right and all statutory rights, of
an exclusive character, and reduce inventors to some purely
theoretical expectations in accordance with the second draft for
the constitutional clause, or even adopt the extreme view of the
first draft. It has been said that Congress is limited in this
respect, and that even a provision for working obligations,
secured by compulsory licenses, would be unconstitutional for
the reason that such provisions were usual in all previous
“patent” systems, while the Constitution avoids reference to
“patents” and speaks of “exclusive rights” . However, no
desire was expressed with any certainty, in 1787, to prevent
Congress from adopting such patent limitations as were in
general use at that time . “Exclusive” rights are not
necessarily “unconditional.” However, they are basically and
diametrically different from “premiums” and the like, and of
course, irreconcilable with the idea of no rights at all for
inventions. Therefore, it would be unconstitutional for
Congress to subject all patents to compulsory licensing as a
matter of principle; such papers could be called “patents,” but
would not partake of the nature of “exclusive rights,” which are
the only ones authorized by the Constitution. An exclusive
patent that can be made nonexclusive, upon reasonable terms, is
in an entirely different classification, and is not, on its very
face, an unconstitutional instrument. Of course, it is still a
question, what terms are sufficiently reasonable. The state
copyright statutes enacted before the constitution do not
answer this question with any detail. However, the practice
defined by the French law of 1762, which probably prevailed in
other countries also; suggests a principle the equity of which
can hardly be denied.
Penning, 11 JPOS 438.
Schechter, 22 Virg. L. R., 287, 309.
In accordance with the above, our present patent statutes should
be interpreted as laws declaratory of the common law.
Inferences frequently drawn from the opposite doctrine 
are unjustified. It does not follow, however, that every doubt
must be resolved in favor of the patentee or inventor. The
Constitution is sufficiently specific about the public interest
to preclude such a reading. However, the Constitution neither
requires nor suggests an inequitable result like the Supreme
Court holding that a patent when unsigned by neglect does not
support an infringement suit.
It is quite a step from the now prevailing denial of common law
patent rights to Daniel Webster’s view. There are difficulties
in applying the doctrine, as well as in denying it. The
opponents of intellectual property were never able to explain
why the originator of a pot should be vested with inherent
property in the tangible thing, while the originator of a new
design for pots should go unrewarded. The Anglo-American
doctrine could never justify the property in a new esthetic
idea, or in a new trade name, while property in a new
technological idea was denied. On the other hand, the friends
of intellectual property have seldom, if ever, explained why
this property, according to the now accepted rule, should be
limited to a term of years, when other property is perpetual.
The idea forming the subject of such a right cannot be said to
be perishable like a fruit, or apt to withdraw itself from human
possession like an animal ferae naturae.
This difficulty, the only serious one opposing the acceptance of
the industrial property doctrine, can be overcome by established
principles of property law. Both real and personal property,
regardless whether in the nature of choses in possession or
choses in action, are subject to the Statute of Limitation,
which by now has become an institution of the common law. There
is no good reason to hold that publication of a new esthetic or
technological idea is tantamount to a dedication to the public;
but such publication does start a period of pos-
instance, the dissent of J. Black in the recent Mercoid case.
session by the public. It can be presumed, from the experience
of the centuries, that such possession has the character of
adverse possession. Thus, in the absence of a patent term fixed
by a patent statute, the intellectual property held by an author
or inventor is terminated by the general Statute of Limitations,
the period of which begins to run at the moment of the first
1469: Patent of John of Speyer [191[
There has been introduced into our community the art of
bookprinting, and from day to day it is made more celebrated and
frequent by the efforts, study and ingenuity of master John of
Speyer, who preferred our city to all others to… live here and
to exercise said art… so that… it will be enriched by numerous
and excellent books. And since such invention, peculiar and
proper to our time and entirely unknown to our elders, deserves
every aid and favor, master John too should receive material
aid, so that he may persevere so much more eagerly. In the same
manner as usual in other useful arts, even in much inferior
ones, the undersigned councillors have… decreed… that for five
years next following there should be nobody whosoever who would,
could, might or dare exercise said art of bookprinting in Venice
and its territories, except master John himself. And whenever
anybody should be found who dares against this decree to
exercise said art and to print books he should be condemned to a
fine, and loss of his instruments, and books printed by him.
And under the same penalty nobody must… bring such books here
for sale, when printed in other countries.
1474: Patent Statute 
Libro Maggiore of the Provveditori del Comun, p. 89. Privileges
of ten years are generally promised to the inventors of new arts
1545: Intellectual Property Statute 
It is decreed that henceforth no printer of this city shall dare
to print… any works… unless… the author or his heirs… have
declared their consent and requested the printing.
191. Stolfi, App. No. I; Fulin,
App. No. 1.
192. As reported by Romanin, vol.
4 p. 485. The actual wording, unfortunately, is unknown.
193. Stolfi, App. No. 13; Brown
App. 1 No. 7.
1536: Privilege of Etienne Turquetti 
Minutes of the Consular Government of Lyons. August 25, 1536.
Mr. M. de Vauzelles, royal advocate, reported how Etienne
Turquet and others, his partners, arranged to have workers come
here, to establish enterprises in this city, to make fabrics of
silk here, provided that there be obtained permission of the
king and safe conduct for said help and workers, inasmuch as
they will come from Genoa and other foreign countries; said
workers to have franchises and tax exemptions like those at
August 28, 1536… So resolved by the Consular Government, which
will prosecute the matter with all power at its command.
September 2, 1536. Etienne Turquet came to show royal letters
which he says were granted to him by the council of the king, to
establish… enterprises… for which said monarch gives safe
conduct and tax exemption. The letter, drawn up by the judge
Vauzelles… was found in order. Again, said Turquetti showed
that a year has gone by since he started to prosecute this
affair and he has expended… great costs… And since there may be
others who, after said art and enterprises are established… will
want to establish additional enterprises of said art… and have
not carried any expense… he wishes that these should permit that
said Turquet receive a contribution from them… Which was granted
to him by the Consular government.
May 17, 1537. (Turquet, the “first inventor and author of said
establishments” obtains a loan from the city, for which he
transfers his privilege to the city.)
January 29, 1538. (Turquet obtains a new municipal loan, and tax
exemption. Stipulated that, regardless of the transfer of the
privilege, “said councilors… shall not allow any one to come to
establish such enterprises… except when first agreeing with said
Turquet and his partners to pay part of said costs…”)
Nov. 9, 1540. (Turquet has a guild established for the new art.)
1551: Patent of Theses Indio 
Henry, etc. We have received the humble petition of our dear and
beloved Theses Mutio, Italian Gentleman, setting forth that upon
the suggestion of certain notabilities of our kingdom he
194. Montfalcon vol. 2 p.
195. Isambert vol. 13 p. 184,
… came to reside here to cast and make glasses, mirrors, tubes,
and other kinds of glassware, according to the manner of Venice.
He was unable to take along his tools… and had to make new
tools… at great cost and expense.
And now, when all is prepared as required, and so that the work
produced is generally found as beautiful and excellent as that
imported from Venice, he fears that other glassmakers might copy
his said work in the manner of Venice, and thereby frustrate his
recovery of said cost and expense.
Therefore… we give the said Theses Mutio the right, permission
and express privilege that for the period of ten years next
following he alone may make… glassware according to the manner
of Venice and have the same for sale; we prohibit and forbid
that any glassmakers… during said ten years shall make… or hold
for sale any… glassware according to the manner of Venice,
except those made by said Theses Mutio; or on his order; under
1699: Examination Statute 
Regulations of the Royal Academy of Science, Article 31: The
Academy shall, on order of the King, examine all machines for
which privileges are solicited from His Majesty; it shall
certify whether they are new and useful, and the inventors of
those which are approved shall leave a model thereof… Article
34: Non-members of the Academy are not admitted to the meetings,
except when introduced by the Secretary for the purpose of
demonstrating any discoveries or any new machines.
1711: First Design Property Statute 
Ordinance of the Consuls of Lyons (1711), approved by the
Council of State (1712) and registered in Parliament (1717): All
master merchants, working masters, journeymen and others
employed in the manufacture of fabrics of silk, regardless of
sex and age, are expressly prohibited and enjoined from taking,
stealing, selling, lending, transferring and using directly or
indirectly any designs which have been entrusted to them for
1744: Second Design Property Statute 
An Act by the Council of State, concerning the Manufacture of
Silk in Lyons. Title 9.
Art. 12. Further, said working masters are prohibited from
selling, giving away, or lending, for any cause and under any
196. Histoire de L’Ac. Roy. des
Sc., 1699, publ. 1706, p. 3.
197. Pouillet p. 4.
198. Pouillet p. 5.
pretext, any designs which have been entrusted to them for
manufacturing purposes, under penalty of a fine …
Art. 1.3. Further, all designers and other persons whosoever are
prohibited from lifting and copying, or causing others to lift
and copy, directly or indirectly, in any manner, any design on
fabric either old or new, or on the design cards. of said
fabrics, under penalty ..
1762: Statute on rights arising from patents
Louis, etc. The privileges, which have the object of .rewarding
the efforts of inventors, and of stimulating those lying dormant
in idle acquiescence, are not always as successful as can be
expected; the reason being sometimes that those privileges, when
granted for unlimited time, seem to be inheritable property
rather than a personal reward to the inventor ; or that the
privilege can often be assigned to persons who do not have the
required capability; or finally, that the children, successors
or assigns of the grantee, legally entitled to the enjoyment of
the privilege, fail to acquire the necessary skill. Failure to
use a privilege is objectionable, since it restricts liberty,
while giving the public none of the goods that should be
expected. Finally, the lack of publication of privileges
granted often enables the grantee to extend the same and
abusively to obstruct the work and labor of our subjects. For
such ... reasons .
1) Trade privileges which have been or may be granted to
individuals, either alone or in partnership with others, for
fixed and limited times, shall be executed according to their
form and tenor, until the term fixed therein.
2) All privileges which have been or may hereafter be granted
indefinitely and without term, shall be fixed and reduced to the
term of fifteen years of enjoyment, counting from the grant, and
shall so remain, except for extension of said privileges, if
such may be granted to the holder; however, we do not/intend to
change anything in regard to concessions made by us in any
property, be it in franc-almoign, in fee, or under yearly
3) Privileges not limited at the time of the grant, which by the
preceding article are fixed to the term of fifteen years, and
which have expired or entered the fourteenth or fifteenth year
of their use, on the day of publication hereof, shall be
extended for three years counting from the day of such
publication, except where further extension may be obtained by
4) It shall be lawful for the grantee to assign the use of his
privilege to his children or grandchildren, inter vivos; but it
199. Rec. des Edits et Decl.,
vol. 4, 1776; Renouard p. 106.
shall be unlawful to assign it to others without special
authorization by us.
5) In case of the decease of the grantee during the life of his
privilege, his direct or collateral heirs, general or special
legatees, or other assigns shall not be entitled to become
holders of said privilege, except on confirmation obtained from
us, after proof of their capability, notwithstanding any clauses
whatsoever that may be found either in any granting instruments
or in any subsequent instruments or acts, all of which are
hereby expressly revoked.
6) All privileges the grantees of which have unsuccessfully
attempted actual practice, or neglected use and exercise for one
year, together with the orders, letters patent, patent
certificates or other instruments containing such privileges,
shall be void and revoked for all times, except where the
exercise of such privileges was suspended for legitimate reasons
or difficulties, to be justified by the grantee.
7) In order to make said privileges known to whom it may concern
we wish that after the registration of said privileges in our
Courts, there shall be sent a true copy thereof, by our Attorney
General, to the Bailiff’s offices in whose territories they
shall be used.
1767: .Diderot on intellectual Property 
Letter on the Publishing Trade… The question. is whether a
privilege should be classified as one of the obnoxious
You will say it is a monopoly in derogation of Common-Law
That is quite true.
… And, you will add, it must have seemed harsh to concede to one
what was refused to another.
It seems harsh; but either that is clone, or no one can ever
plead the cause of the first occupant and of legitimate
possession, founded on risks, labor and advances. However, so
that the derogation of Common-Law rights might not be excessive,
they saw fit to limit the time of this monopoly.
… The author is master of his work, or nobody is master of his
goods. . . .
1776: Abolition of the guilds 
Edict of February 5, 1.776… We want to abrogate those arbitrary
institutions which… retard the progress of the arts, by multiple
difficulties put in the way of an inventor; those guilds that
dispute his right to use a discovery, never made by themselves…
200. Diderot, Oeuvres Compl., ed.
1877, vol. 18 p. 1-30.
201. Renouard p. 110.
1779: Re-establishment of the guilds 
… These… institutions should not go to the point of limit-mg.
the imagination and genius of an industrious man…
1787: Third Design Property Statute 
An Act to regulate new designs composed by or for manufacturers
of silk and gold-embroidered fabrics of the Kingdom.
The King, having heard in council the petitions and memoranda of
the corporations and communities of Tours and of Lyons
concerning attacks made against their property and against the
general interest of the manufacturers, by the copying and
plagiarizing of designs, considers that the superiority which
the silk manufactures of this kingdom have attained is
principally due to the invention, the correctness and the good
taste of designs; that the ambition which inspires the
manufacturers and designers would disappear if they were not
assured of the fruits of their labors; that this security, in
accordance with the rights of property, has so far sustained
this branch of manufacture and has won the preference that this
manufacture enjoys abroad; he judges, therefore, that in order
to preserve all their advantages, all silk manufactures of the
kingdom should be under the regulations made for those of Lyons
in 1737 and 1744, concerning the copying and plagiarizing of
designs; and to provide the true inventors with a means for
establishing, henceforth, in safe and unalterable manner their
property, and for more and more inciting the talents by an
exclusive enjoyment, proportioned in its duration to the costs
and merits of the invention… he orders as follows:
1. Any manufacturer who has composed, or has had others compose
a new design, shall have alone, to the exclusion of all others,
the right to have it executed in fabrics of silk, embroidered
silk, or mixtures of silk; the duration of this privilege shall
be fifteen years in the case of fabrics for church furniture and
adornment, and six years in the case of those… for… other uses,
always starting from the day on which the formalities
hereinafter prescribed have been fulfilled.
2. His Majesty prohibits all workers from selling, giving away,
or loaning to others… any designs which have been entrusted to
them for manufacturing purposes, by penalty…
3. Similarly His Majesty prohibits all designers and others…
from lifting and copying directly or indirectly, any design on
fabrics, old or new, or on design cards for such fabrics, by
4. (Types of fabric covered.)
202. Renouard p. 117; lsambert
vol. 26 p. 77.
203. Isambert vol. 28 p. 380-382;
Blanc p. 371-573.
Any manufacturer who has invented or has had others make a
design, and who desires to conserve for himself the execution
thereof, shall… present a sketch of the same… to the bureau of
his community, whereof a descriptive statement shall be made,
without cost, in a register… which statement shall contain the
name …, etc. of the master and manufacturer who, as author and
inventor of such design or fabric wants to establish his
property; the date … etc.
6. (If not so registered, not protected)
7. A Manufacturer who has fulfilled the formal requirements of
article 5 shall be deemed the sole proprietor of the design…;
therefore it shall be open to him to prosecute, before the
industrial police court of the infringer’s domicil, both those
who have others lift, copy or trace the design, and those who
have it executed; to ask that the penalties of articles 2, 3 and
4, above, be pronounced against them, and that, the fabrics be
seized, both in the hands of the manufacturer who had them
executed, and in the hands of any dealer who has them for sale;
provided that the dealer may take recourse, for the value of the
goods, damages and interests, if any, against the manufacturer
who sold the fabrics made with lifted, copied or traced designs.
8. His Majesty prohibits all manufacturers from having others
execute in fabric… any design-executed on paper or otherwise,
without assuring himself whether the design on paper has not
been executed previously in fabrics; therefore, any manufacturer
who executes in fabric a paper design copied from fabric.,
infringes article 3…
1790: Industrial Property Statute 
Law on Useful Discoveries and on Means for Securing the Property
therein to the Authors. Adopted December 31, 1790; enacted
January 7, 1791.
The National Assembly, considering that any new idea, the
manifestation or development of which may become useful to
society, belongs basically to the one who has conceived it, and
that it would be a violation of the Rights of Man, in their
essence, not to regard an industrial discovery as property of
Considering at the same time how much the lack of a positive and
authentic declaration of this truth. may have contributed, until
now, to discourage French industry, causing various
distinguished experts to emigrate, and many new inventions to
pass abroad, while this country should have drawn the first
benefits thereof ;
204. Lois & Actes du
Gouvernernent, vol. 2, 1790-91, publ. 1806; also in the French
Patent Reports, first series, vol. I p. 28; 34.
Considering filially that all principles of justice, public
order, and national interest command. imperatively that this
Assembly, forthwith, should state the opinion of the French
people concerning this kind of property, by a law to consecrate
it and to protect it,
Decrees as follows.
1. Any discovery or new invention, in any kind of industry, is
the property of its author. Consequently the law guarantees to
him the full and complete enjoyment thereof, in the manner and
for the time hereinafter determined.
2. Any means for adding to any manufacture a new kind of
perfection shall be regarded as an invention.
3. The first person to import a foreign discovery into France
shall enjoy the same advantages as if lie were the inventor
4. Any person who wants to conserve or to secure to himself an
industrial property of the kind referred to in the preceding
articles, shall (first) file… a written declaration stating
whether the subject involved is an invention, an improvement, or
only imported; (second) file… an exact description of the
principles, means and processes which constitute the invention,
as well as the plans, cuts, drawings, and models which may have
reference thereto .. .
5, 6. (Other recompensations authorized, if the inventor waives
7. In order to secure to any inventor the property and temporary
enjoyment of his invention, there shall be delivered to him a
title or patent, according to the form indicated in the
Regulations which shall be made for the carrying out of this
8. (Patents to be for 5, 10 or 15 years at the choice of
9. (Import patents to expire with foreign patent)
10. (Patents to be delivered through local authorities)
11. (Publication of patents)
12. (Remedies for infringement)
13. (Plaintiff liable for damages if he fails to prove his case)
14. (Full right to use, license or assign the patent)
15. At the expiration of any patent, since the discovery or
invention ought to belong to society, the description thereof
shall be made public, and the use thereof shall be permitted
throughout the country…
16. (Patents declared void if the description is deceptive or
incomplete; if the subject has been described in a prior printed
publication; on failure to work the invention within two years
except where good reason is shown; and if a subsequent foreign
patent is taken out by the.patentee.)
1672: Mercantilist Rule in Connecticut 
There shall be no monopolies granted or allowed amongst us but
of such new inventions as shall be judged profitable for the
country and for such time as the general court shall judge meet.
1672: Intellectual Property Rule in Massachusetts
No printer shall print any more copies than are agreed and paid
for by the owner of the said copy or copies, nor shall he nor
any other reprint or make sale of any of the same, without the
said Owner’s consent, upon the forfeiture and penalty…
1783-6: Preambles of Copyright Statutes of the States
CONNECTICUT 1783: Whereas it is perfectly agreeable to the
principles of natural equity and justice that every author
should be secured in receiving the profits that may arise from
the sale of his works, and such security may encourage men of
DELAWARE : No Statute
GEORGIA 1786: Whereas the principles of natural equity and
justice require that every author should be secured in receiving
the profits that may arise from the sale of his works, and such
security may encourage men of learning…
MARYLAND 1783: Whereas printers… may take the liberty of
printing… books… without the consent of the authors and
proprietors of such books to their great injury…
MASSACHUSETTS 1783: Whereas… the principal encouragement… to
make great and beneficial exertions… must exist in the legal
security of the fruits of… study and industry… and as such
security is one of the natural rights of all men, there being no
property more peculiarly a man’s own than that which is produced
by the labor of his mind…
NEW HAMPSHIRE 1783: Substantially same as Massachusetts.
NEW JERSEY 1783: Whereas learning tends to the. embellishment of
human nature… and as it is perfectly agreeable to the principles
of equity that men of learning… should have the profits that may
arise from the sale of their works secured to them…
NEW YORK 1786: Same as Connecticut.
NORTH CAROLINA 1785: Whereas nothing is more strictly a man’s
own than the fruit of his study, and it is proper that men
should be encouraged to pursue useful knowledge by the hope of
205. F. W. Dahn, 3 J POS 346.
206. Solberg, Cop. En. p. 113.
207. Solberg, Cop. En., First
ward; and as the security of literary property must greatly tend
to encourage genius, to promote useful discoveries, and to the
general extension of arts and commerce…
PENNSYLVANIA 1784: Substantially same as Maryland.
RHODE ISLAND 1783: Substantially same as Massachusetts.
SOUTH CAROLINA 1784: No Preamble.
VIRGINIA 1785: No Preamble.
1787: Proposals for Constitutional Patent Clause
1. To secure to literary authors their copy rights for a limited
time. (Submitted by Madison, according to his Journal).
2. To secure to literary authors their copy rights for a limited
time. To encourage by (proper) premiums and provisions the
advancement of useful knowledge and discoveries. (Recorded by
the Documentary History submitted by Madison, without “proper,”
according to another source.)
3. To secure to literary authors their copy rights for a limited
time. To secure to inventors of useful machines and implements
the benefits therefor, for a limited time. (Submitted by
Madison according to the Documentary History.)
4. To grant patents for useful inventions; to secure to authors
exclusive rights for (a) limited time. (Submitted by Pinkney
according to Madison’s journal, and, without “a,” according to
5. To secure to authors the exclusive rights to their
performances and discoveries. (Submitted by Pinkney according
to his Observations).
Jefferson on Intellectual Property
.Letter to Isaac McPherson, August 13, 1813 … It has been
pretended by some, and in- England especially, that- inventors
have a natural and exclusive right to their inventions, and not
merely for their own lives, but inheritable to their heirs. But
while it is a moot question whether the origin of any kind of
property is derived from nature at all, it would be singular to
admit a natural and even an hereditary right to inventors. It
is agreed by those who have seriously considered the subject
that no individual has, of natural right, a separate property in
an acre of land, for instance. By an universal law, indeed,
whatever, whether fixed or movable, belongs to all men equally
and in common, is the property for the moment of him who
occupies it, but when he relinquishes the occupation, the
property goes with it. Stable ownership is the gift of social
law, and is given late in the progress of society. It would be
curious then if an idea, the fugitive fermentation of an
208. K, Fenning, I I JPOS 438,
could, of natural right, be claimed in exclusive and stable
property. If nature has made one thing less susceptible than
all others of exclusive property, it is the action of the
thinking power called an idea, which an individual. may
exclusively possess so long as he keeps it to himself; but the
moment it is divulged, it forces itself into the possession of
everyone, and the receiver cannot dispossess himself of it. Its
peculiar character, too, is that no one possesses the less
because every other possesses the whole of it. He who receives
an idea from me receives instruction himself without lessening
mine, as he who lights his taper at mine receives light without
darkening mine. That ideas should freely spread from one to
another over the globe, for the moral and mutual instruction of
man, and improvement of his condition, seems to have been
peculiarly and benevolently designed by nature. When she made
them like fire, expansible over all space, without lessening
their density in any point, and like the air in which we
breathe, move, and have our physical being; incapable of
confinement or exclusive appropriation. Inventions then cannot
in nature be a subject of property. .Society may give an
exclusive right to the profits arising from them, as an
encouragement to men to pursue ideas which may produce utility,
but this may or may not be done according to the will and
convenience of the society, without claim or complaint from
anybody. It is a fact, as .far as I am informed, that England
was, until we copied her, the only country on earth which ever,
by a general law, gave a legal right to the exclusive use of an
idea. In some other countries it is sometimes done, in a great
case, and by a special and personal act, but, generally
speaking, other nations have thought that these monopolies
produce more embarrassment than advantage to society; and it may
be observed that the nations which refuse monopolies of
invention are as fruitful as England in new and useful devices.