Extract from The Law Quarterly Review, Vol 46, April 1896, pages 141-154
The History of the Patent System under the Prerogative and at Common Law
by E. Wyndham Hulme
Notwithstanding a general admission of the theoretical importance of an acquaintance with the principles and practice of the patent system under the common law, it will, nevertheless, be allowed that in practice the Statute of Monopolies has been regarded as the first and final source of authority. In 1827, however, when the subject of patent law reform first began to claim the attention of the Legislature, an effort was made by the Lower House to secure more accurate and positive information. In this year the Crown, in compliance with a resolution of the House, ordered a return to be prepared 'of the titles and dates of all special privileges and patents granted in England previous to March 1, 1623, and stating whether for English or foreign manufactures and inventions.' Unfortunately, the resources of the Keepers of the National Records proved unequal to the demands made upon them; and as a matter of fact the return was never presented. The resolution, nevertheless, deserves to be rescued from the oblivion into which it has fallen. For, while on the one hand it excludes as foreign to the inquiry an investigation of the commercial privileges of the trading companies, [fn.: See note on p. 153 (i.e. beginning "This point is important")] it includes all grants made in respect of manufactures or inventions irrespective of the nature of the privileges conferred therein. In other words, we are told to look, not for Monopoly patents in the etymological sense of the words, but for grants made in furtherance of particular industries. With this clue to guide us we shall at once proceed to inquire, firstly, at what period the Crown by means of its grants first actively interfered in the promotion of industry, and secondly, what relation these grants may be found to bear to the first recorded Monopoly patents of invention. For this purpose we may briefly summarize the conclusion which may be obtained from a perusal of any standard history of industrial progress in this country.
During the period of history known as the Middle Ages, the industrial attainments of the English were far below the level of their continental rivals, France, Germany, Italy, Spain, and the Low Countries. Moreover, throughout Europe progress in the manufacturing arts is found to be due, not so much to the individual experimental effort, as to the slow infiltration of improved processes, the source of which is ultimately traceable to the more advanced civilization of the East. As late as the sixteenth century the type of English society was mainly that of a pastoral and mining community, exchanging its undressed cloth, wool, hides, tin and lead for the manufactures of the continent and the produce of the East. The rise of the native cloth industry in the fourteenth century gave to this country her first considerable manufacturing industry; and, inasmuch as the development of the industry is universally attributed to the fostering influence of the Crown, it will be necessary to scrutinize somewhat closely the various grants by means of which these results were obtained. For the facts here presented no originality is claimed. Their connection, however, with the history of patent law has never yet been properly established.
In the letters of protection to John Kempe and his Company, the text of which is here reproduced from Rymer, will be found the earliest authenticated instance of a Royal grant made with the avowed purpose of instructing the English in a new industry.
Pro Johanne Kempe de Flandria, Textore Pannorum, super Mestro suo exercendo
A.D. 1331. Pat. 5 Ed. III, p 1, m. 25.
REX Omnibus Ballivis, etc., ad quos, etc., Salutem
SCIATIS quod, cum Johannes Kempe de Flandria, Textor Pannorum Lancorum, infra Regnum Nostrum Angliae causa Mesteri sui inhibi exercendi et illos qui inde addiscere voluerint, instruendi et informandi, accesserit moraturus et quosdam Homines et Servientes ac Apprenticios de Mestero illo secum adduxerit,
SUSCEPIMUS ipsum Johannem, Homines, Servientes ac Apprenticios suos praedictos, ac Bona et Catalla sus quaecumque, in protectionem
PROMITTIMUS enim nos aliis Hominibus, de Mestero illo, ac Tinctoribus, et Fullonibus venire volentibus de partibus Transmarinis, ad morandum infra iden Regnum nostrum ex causa Praemissa, consimiles litteras de Protectione fieri facere debere.
IN CUJUS, etc. quam diu Regi placuerit duraturas. Teste Rege apud Lincolniam, vicessimo Tertio die Julii
Here we have, not a solitary instance of protection, but the declaration of a distinct and comprehensive policy in favor of the textile industry; for the grant contains a general promise of like privileges to all foreign weavers, dyers and fullers, on condition of their settling in this country and teaching their arts to those willing to be instructed therein. Nor is this all. In 1337 these letters patent were expressly confirmed by a statute framed for the protection of the new industry, cap. 5 of which enacts, that all clothworkers of strange lands, of whatsoever country they may be, which will come into England, Ireland, Wales, and Scotland, and within the King's powers, shall come safely and surely and shall be in the King's protection and safe-conduct to dwell in the same lands, choosing where they will; and to the intent that the said clothworkers shall have the greater will to come and dwell here, Our Sovereign Lord the King will grant them franchises as many and such as may suffice them. [fn.: In the recent report of the Hist. MSS Comm. xiv, pt. viii, p. 7, Lincoln, there is an ordinance dated May 1, 1291, which at first sight carries back this policy of encouragement to a still earlier date. It runs as follows: 'and that men may have the greater will to labor in the making of cloth in England, Ireland, and Wales,We will that all men may know that We will grant suitable franchises to fullers, weavers, and dyers, and other clothworkers who work in this mystery so soon as such franchises are asked of us.' The 'Athenaeum,' however, points out from internal evidence that the true date of the document is probably May 1, 1326. See also Calendar of Patent Rolls, 1327-30 under date May 1, 1327, where it appears that the first act of Ed. III was to cause a renewal of the Ordinance of the late king.']
As it is with the continuity rather than with the success of the new policy that we have here to deal, we shall briefly enumerate in their chronological order the grants which appear to have been issued in furtherance of the above object. In 1336 similar letters were issued (10 Ed. III, Dec 12) to two Brabant weavers to settle at York in consideration of the value of the industry to the Realm. In 1368 (42 Ed. III, p. 1) three clockmakers of Delft were invited to come over for a short period. In the following reign we are informed (Smiles, Huguenots, p. 10) that the manufacture of silk and linen was established in London by the king by the introduction of similar colonies from abroad, but whether by letters patent or otherwise has not been ascertained. The first instance of a grant made to the introducer of a newly-invented process will be found in letters patent dated 1440 (18 H. 6 Franc. 18, m. 27) to John of Shiedame, who with his Company was invited to introduce a method of manufacturing salt on a scale hitherto unattempted within the kingdom. Twelve years later, in 1452, a grant was made in favor of three miners and their Company, who were brought over from Bohemia by the king on the ground of their possessing 'meliorem scientiam in Mineriis' (Rhymer, xi. 317).
These instances, although, probably, not exhaustive of the industrial grants of the fourteenth and fifteenth centuries, sufficiently illustrate the well-known citation from the Year Book, 40 Ed. III, fol. 17, 18, to the effect that the Crown has power to grant many privileges of the sake of the public good, although prima facie they appear to be clearly against common right.
With the alchemical patents of Henry VI, wrongly assigned by Hindmarch to the reign of Edward III, we must deal briefly.
In 1435-36 two successive Commissions were appointed to inquire into the feasibility of making the philosopher's stone for medicinal and other purposes. Respecting these Commissions we are assured by Prynne in his Aurum Reginae that they proved 'entirely abortive for aught that he could find.' The fiction of a monopoly having been intended, based upon an obviously inaccurate account in Moore's Reports, p. 671, may be dismissed as the invention of a later date. Other so-called alchemical patents resolve themselves into either warrants for the arrest of the individuals concerned, or dispensations from the penal statute of 5 Henry IV, by which the practice of transmutation was made a felony. In any case the connection of these grants with the history of patent law must be considered as exceedingly remote.
With the accession of the Tudor dynasty the patent system underwent a change which divested it of all constitutional value. In place of the open letters for the furtherance of the national industry, we now find the Crown entering into secret negotiations for the purpose of attracting skilled foreigners into its own service. Amongst these we may instance the introduction of German armorers, Italian shipwrights and glass makers, and French iron founders. In the absence of any grants recorded in connection with these transactions, it is impossible to define the precise relations existing between the Crown and the immigrant artisan. The Italian glass makers introduced circa 1550, i.e. under the protectorate of Somerset, were recalled by the Venetian State; but the French iron founders appear to have successfully established in the Weald district the art of casting iron ordnance, which shortly afterwards superseded the older forms of bronze cannon. The Tudor practice, however, must be regarded as a perversion of the medieval policy of the encouragement of industry; and it is to other causes that we must look for the reconstruction of the system by Elizabeth, in whose reign the principles of the modern patent system were first distinctly enunciated and carried into practice.
The rise of a capitalist middle class to wealth and political influence in the sixteenth century is ascribed to the disappearance of the old Nobility during the Wars of the Roses and the redistribution of monastic property under Henry VIII. The immediate effect of these changes is seen in the development of the native spirit of speculative enterprise and the rise of the Joint Stock Companies. The first instance, according to Professor Cunningham, of this class embarking in industrial schemes is to be found in the Statute 1 & 2 Phil. & Mary, cap. 14, A.D. 1555. From the preamble of this Act we gather that certain merchants of Norwich had by the introduction of Italian workmen so improved the manufacture of Russels, Sattens [i.e. Satins? KWD], Satten reverses and fustians, that they were enabled to compete successfully with their foreign rivals. As a reward for their enterprise the merchants obtained a charger with a practical monopoly of the industry, together with other privileges. This class we shall now find undertaking in an hour of need to introduce under the direction of the Crown, but at its own charges, certain industries, the provision of which was considered indispensable for the safety and independence of the Realm. With this preface we propose to leave the grants to speak for themselves. The list, which has been prepared from the Patent Rolls and Calendars, constitutes the first attempt to fix the date of the introduction of the English patent system. It is, moreover, believed to be a complete record of the industrial monopoly licenses issued during the period 1561-70. [fn.: It should, perhaps, be stated that this list has been prepared from an examination of the entries on the Calendars of the Patent Rolls -- all doubtful entries having been compared with the Rolls themselves. Its claim to completeness, therefore, rests upon the sufficiency of these Calendars.]
[In the following, I have standardized and modernized spelling, to the extent that I understand the archaic spellings. KWD]
No. I. 1561. Jan. 3. A license to Stephen Groyett and Anthony Le Leuryer to make white soap (for 10 years).
The best English soap of the period was the soft mottled Bristol soap, 'very sweet and good,' but unsuitable for fine laundry work, for which the hard Spanish soap of Castille was largely employed. The grant stipulates that two at least of the servants of the patentees shall be of native birth, and that the soap, which is to be of the white hard variety, shall be as good and fine as is made in the Soap house of Triana or Seville. The patentees are bound to submit their wares for the inspection of the municipal authorities, and on proof of defective manufacture the privilege is void. The grant appears in full in 'Engineering,' June 22, 1894, with a brief outline of the origin of patent law by the present writer.
No. II. 1561. Aug 8. License to Philip Cockeram and John Barnes to make saltpeter (for 10 years).
At the date of the grant saltpeter was not manufactured within this country; most of the imported article arrived via Antwerp, a port controlled by the Catholic King of Spain. The Queen therefore bargained with Gerard Honrick, 'an almayne [Allemand or German?] Captain,' to come over and teach her subjects 'the true and perfect art of making saltpeter' as good as that made 'beyond the seas,' stipulating, however, that the secrets of the manufacture should be reduced to writing before the promised reward of £300 should be paid. On the arrival of Honricke the Queen resigned her bargain (Pat. 3 Eliz. p 6) into the hands of the above patentees, who were both London tradesmen. The specification will be found in full in 'Engineering,' June 15, 1894.
No. III. 1562. May 26. Privilege to George Cobham, alias Broke, for a dredging machine (for 10 years).
The patentee represents that 'by diligent travel' he had discovered a machine to scour the entrances of harbors, etc., to a depth of sixteen feet. The patent is for the importation of a sufficient number of these machines. The rights of scouring channels by the older method are reserved, and the Queen expresses a hope that her favorable treatment of the patentee 'will give courage to others to study and seek for the knowledge of like good engines and devices.'
No IV. 1562. Dec 31. License to Wm. Kendall to make Alum in Devon, Cornwall, etc. (for 20 years).
In the recital of the grant Kendall represents that he had discovered ores of alum in abundance with a practical method of its extraction. The manufacture was started in Devonshire, but failed. See under 1564, July 3, Alum patent of Cornelius De Vos.
No. V. 1562. Dec. 31. Patent to John Medley for an instrument for the draining of water (for 20 years).
The recital states that mines of tin, lead, coal, etc., in Devon as elsewhere, were drowned and altogether unoccupied, 'owing to the great abundance of water.' It is not clear that Medley lays claim to the invention of the device, although the grant covers all subsequent improvements. The rights of users of old machines are reserved, and clauses are inserted regulating the compensation to be paid for entering upon abandoned properties. In case of disputes arising, the quarrel is to be referred to the Privy Council. The source of inspiration of this and the numerous subsequent patents for mine drainage and water raising will be found in the illustrated work of Agricola published in 1559.
No. VI. 1563. Feb 26. A license to George Gylpin and Peter Stoughberken to make ovens and furnaces (for 10 years).
In the S.P. Dom. 1565 there is a certificate from some London brewers, who testify to the economy of fuel effected by the furnaces of a German, Sebastian Brydigonne, who may have been connected with the above patentees. The grant refers to the growing scarcity of wood fuel, owing to the large consumption in the brewing and baking trades. The grant is void in case the patentees fail to come over and put the grant into practice within two months, or prove extortionate in their charges.
No. VII. 1563. June 22. A license to Burchsard Cranick to make engines for the draining of waters (20 years).
This grant is similar to that of Medley's, but gives some additional powers of entering upon old and abandoned mines under proper restrictions. The engine is stated to have been lately invented, learned and found out by Cranick, and to be unlike anything devised or used within the realm. Three years are allowed for the patentee to perfect and demonstrate the utility of his engines. Disputes are to be referred to the Warden of the Stannaries and three Justices of the Peace.
No. VIII. 1564. July 3. License to Cornelius de Vos to make Alum and Copperas (for 21 years).
De Vos obtained this grant on the strength of the discovery of ores of alum and copperas (sulphate of iron) in the Isle of Wright (Alum Bay). His rights were shortly afterwards assigned to Lord Mountjoy, who in 1566 obtained parliamentary confirmation of the grant. Both the Queen and Cecil were originally financially interested in the success of the experiment. In 1571 Bristol merchants complained of the decay of their trade owing to the fact that iron and alum, which had hitherto come from Spain, were now made better and cheaper in this country. See also Stow's Annals, 1631, pp. 897, 898; Geological Survey, Memoirs, Jurassic Rocks, i. 452-454. The grant confers the right to take up workmen at reasonable wages, together with all materials requisite for the manufacture.
Nos. IX, X.
1564. Oct 10. Commission to Daniel Houghsetter and Thomas Thurland for mining in eight EnglishCounties.
1565. Aug 10. Special license to the same concerningthe provision for the minerals and mines of gold, silver, etc.
This grant was the outcome of the action of the Queen, who early in her reign sent for expert German miners to revive the mineral industries of the kingdom. Thurland, master of the Savoy, appears to have acted as agent and go-between in the matter. Copper mining, practically a lost art, was at once started at Keswick on a large scale; the metal being required for the casting of bronze ordnance. The validity of the grant was challenged by the Earl of Northumberland on the ground that the work was within the Royalties granted to his family in a former reign. The case was decided in favor of the Queen, on the ground that the neglect of the Earl and his predecessors to work the minerals during seventy years 'had made that questionable which for ages was out of question' (Pettus, Fodinae Regales). On May 28, 1568, the Company was incorporated by Charter as the Society of the Mines Royal, which existed down to the eighteenth century. Houghsetter migrated to Cardiganshire, where valuable deposits of silver were discovered, and where he founded a family. See also Col. Grant-Francis, Copper-smelting.
No. XI. 1565. Jan. 29. License to Armigil Wade and Wm. Herlle for the manufacture of sulphur and oil (for 30 years) (Latin).
The full text of the grant will be found in Rhymer. The sulpher was required for making gunpowder, and the discovery may be attributed to the labors of John Mangleman, a German, who was authorized to search for earth proper for making brimstone (Lansd. MSS). The second part of the invention related to the extraction of oil from seeds for finishing cloth. The proper machinery for extracting oil from rape and other seeds does not seem to have been known at the period. The grant was subsequently reissued to Wade and another for a further term of thirty years.
No. XII. 1565. April 20. License to Roger Heuxtenbury and Bartholomew Verberick for Spanish leather.
Shoes of Spanish leather, i.e. yellow leather, appear to have been preferred 'to those which shine with blacking" (Howell, Letters, I. i. 39). The grant confers an exclusive right of manufacture, and dispenses with the provisions of an Act forbidding the export of leather. On the other hand, it insists on the employment and instruction of one English apprentice for every foreigner employed, and subjects the industry to the inspection of the Wardens of the Company of the Leather Sellers, who are responsible for 'the skins being well and sufficiently wrought." This grant must not be confused with a subsequent license to Andreas de Loo to export felts which gave great offense to the trade.
Nos. XIII, XIV. 1565. Sept 17. Two licenses to William Humfry and Christopher Shutz to dig (1) for the Lapis Calaminaris, (2) for tin, lead, and other ores.
These grants covered geographically those parts of England not included in Houghsetter's patents and Alum patent of De Vos. The calamine or zinc carbonate was an essential in the manufacture of latten or brass, which it was proposed to use in casting ordnance (S.P. Dom. Eliz. vol 8, No. 14). The mineral was discovered in Somersetshire in 1566, and the first true brass made by the new process was exhibited in 1568. The patentees also erected at Tintern the first mill for drawing wire for use in wool-carding. In 1568 the Company was incorporated by Charter as the 'Company of the Mineral and Battery Works,' and remained under practically the same management as that of the Society of the Mines Royal (Stringer, Opera Mineralia Explicata). In 1564, and again in 1581, the assignees of the patent obtained an injunction against several owners of lead mines in Derbyshire for using certain methods of roasting lead ores in a furnace worked by the foot blast and other instruments invented by Humphrey after the date of his patent. The Court of Exchequer ordered models to be made, and after repeated adjournments a Commission was appointed to investigate 'the using of furnaces and sieves for the getting, cleansing, and melting of lead ore at Mendip, and the usage and manner of the sieve' (Exchequer Decrees and Orders). The depositions in this case are still preserved, but it is impossible to trace the history of the case to its completion. Coke informs us that as regards the use of the sieve, the patent was not upheld on the ground of prior use at Mendip. It is a peculiarity of the grant that it covered all subsequent inventions of the patentees in this particular branch of metallurgy. The hearth was invented after the date of the patent, and one of the questions to be decided was whether a subsequent invention could be covered by letters patent or no.
No. XV. 1565. July 31. License to Francis Berty to put in practice the trade of making white salt.
The patent was surrendered and reissued in the following year.
No. XVI. 1565. Sept 7. License to James Acontius for the manufacture of machines for grinding, etc. (for 20 years) (Latin)
Acontius was an Italian engineer who had taken out letters of naturalization and was in receipt of a small Crown pension. In 1559 he first suggested to the Crown that a monopoly was the most effectual method of rewarding an inventor. His suggestion appears to have borne fruit in the adoption of the monopoly policy in 1561; but Acontius did not receive his patent until this year. Cf. Antiquary, 1885; Ordish, Early English Inventions.
No. XVII. 1566. Jan. 23. License to Francis Berty for the making of salt.
Berty was a native of Antwerp, and probably introduced the Dutch mode of making salt for fish-curing. The salt was extracted by boiling in copper pans. Plans of the furnaces will be found in P.P. Dom. 1566. The later salt patents of the reign gave rise to great local discontent, owing to the oppression of the patentees, who claimed the right to control the price of salt within certain areas.
No. XVIII. 1567. Aug 26. A special license to Peter Anthony van Ghemen (for 21 years) to cut iron, save fuel, and extract oil.
In the Lansd. MSS there is a declaration of the inventions of the above individual and his Company. They consisted of a process of tempering iron so that it might be cut into bars for various purposes, and of special mills for corn and for extracting oil from rape-seed, which for want of proper appliances was sent out of the kingdom to be extracted.
No. XIX. 1567. Sept. 8. License to Anthony Becku and John Carre to make [window] glass (for 21 years).
In 1557 English glassmakers were said to be 'scant in the land,' the seat of the manufacture, which was confined to small green glass ware, being at Chiddingfold. The French patentees were assured by the native glassmakers that they were unable to make the foreign broad or window glass. This patent may be said to have laid the foundation of modern English glass-making; see Antiquary, Nov 1894 - May 1895. It should be noted that the Crown has twice failed to manufacture glass on its own account. The patent insists on the instruction of the English as a condition of the validity of the grant.
No. XX. 1568. Nov 10. License to Peter de la Croce (De la Croix) to make Cendre de Namour (for 7 years).
A patent for dyeing and dressing cloth after the manner of Flanders. English cloth was still exported in the white, undressed condition to be finished abroad. According to the "Request of a true-hearted Englishman," dated 1553 (Camden Miscellany), this was due to 'our beastly blindness and lack of studious desire to do things perfectly and well.' But probably the trade was hampered by the absence of the subsidiary industries of oil, alum, etc.
No. XXI. 1569. Apr. 20. A license to Dan. Houghsetter to use the art of mining (for 21 years).
[See also patent dated Oct. 1564.] The grant is for setting up and using engines for mine drainage.
No. XXII. 1569. May 26. License to John Hastinges to make clothes called Frestadowes (for 21 years).
Frisadoes may be regarded as a variety of 'broad bayes,' but of somewhat lighter character, and dyed and finished for the retail trade. The patent therefore was for dyeing and finishing cloth. Hastings' suit was supported by the Dyers Company, who reported that if English cloth were dyed within the country the Queen would gain £10,000 annually by the increased custom. The manufacture was established at Christchurch, but Hastings seems to have used his grant vexatiously by wantonly molesting the Essex weavers on the ground that the manufacture of baize came within the four corners of the patent. The matter was referred by the clothiers of Coggeshall to the Exchequer, when they claimed to have gained the day (S.P. Dom. Eliz. vol. 106, No. 47, and Noy. 183). Subsequently an agent of Hastings was brought before the Lord Mayor's Court for trespass, and was fined £9 for molesting a weaver within the jurisdiction of the city. (S.P. Dom. Eliz, vol 173, No. 28)
For the period 1570-1603 a mere summary must suffice. In 1571 Richard Matthew obtained a patent for knife-handles 'made of divers pieces of horn mixed with yellow or white plate,' which obtained for him a lasting reputation. The knives were to be stamped with the half-moon, indicative of their Turkish origin, on the blade and handle. The patent was disputed by the Cutlers' Company, who represented that they ought not to be restrained from using a slight improvement on an old industry, and the patent was not upheld (Noy, 183). In the same year Richard Dyer, an escaped prisoner of the Portuguese, secured a grant for the manufacture of earthen fire-pots, an art which he had learned in exile; his patent was renewed in 1579. In 1574 the art of making glasses after the Venetian fashion was introduced by Verselyn (Antiquary, March 1895) in the Hall of the Crutched Friars. In 1578 Peter Morris inaugurated the house-to-house system of water supply by forcing Thames water by a new engine at London Bridge (Antiquary, Aug-Sept. 1895). These works continued to exist down to the removal of the bridge in 1822. Amongst patents of minor interest we may note grants for mine drainage, water supply, musical and mathematical instruments, milling machinery, sail-cloth, oils, salt, vinegar, starch, and saltpeter. The mention of these latter articles will be sufficient to remind the student of Elizabethan industry that we are approaching another and less pleasing aspect of the patent system, the main features of which are faithfully reflected in the report of the Monopoly debate of 1601, which has been handed down to us in the Journal of Simon D'Ewes. Into the merits of this agitation, however, we must for the present refrain from entering. The subject is complicated by considerations affecting the commercial rather than the industrial policy of the reign, an analysis of which would unduly extend the limits of this essay. We shall therefore conclude our survey by briefly indicating the chief points of difference in the position of the patentee under the Elizabethan and modern system respectively.
Under the medieval system of patent law the Crown naturally regarded itself as the sole patron and arbiter of the destinies of the new industry introduced under the protection and authority of its letters patent. But, with the acceptance of the Crown of the Monopoly policy advocated by Acontius in 1559, the responsibility for the introduction of new industries was by a gradual process of devolution shifted from the Crown to the patentee, upon the faith of whose representations the grant was both drawn and issued. The Queen, nevertheless, unconscious of the revolution which was being effected in the system, asserted and retained to the end of her reign her absolute right of jurisdiction in all cases of dispute arising out of these grants. But to dispute the Queen's licenses before the Council or in the Court of Star Chamber or in the Exchequer constituted a risk which few individuals cared to run, as the Courts were apt to regard non-compliance with the requirements of the patentee as evincing a want of respect for the Queen's authority. In 1601, however, this position was challenged by the Houses, and a bill was prepared declaratory of the law upon the subject. This step wrung from the Queen a concession that her grants should be left to the law without the force of Her Prerogative; whereupon the bill was dropped. In 1602 the test case of Darcy v. Allin was heard; and with this case commences the history of the English common law patent system. Nevertheless, to this day the phraseology of the patent grant bears witness to the existence of that earlier period when patents were granted without application ex mero motu et certa scientia on the part of the Crown -- when offenders were liable to penalties in the Queen's Court for contempt of this Our Royal Command; and when the power of summary revocation was committed to a quorum of six of the Privy Council, because at that period the right to challenge the validity of the royal grants in the Courts of common law had not been effectively established.
'All men of the law know,' said Bacon in 1601, 'that a bill which is only expository to expound the common law doth enact nothing.' Hence the common law rights of the importer remained unaffected by the Statute of Monopolies, which confined the legitimate exercise of the prerogative to the true and first inventor. [fn.: The connotation of the term 'inventor' has been unduly restricted. It is used indifferently in these grants with such phrases as 'the first finder out,' 'discoverer of useful arts,' etc. The word 'invenio,' I come upon, denotes primarily a physical act rather than a mental process. The Act sought to vest these privileges in those who had actually contributed to the introduction of the new art, to the exclusion of Court favorites and others.] The choice of language employed by the framers of this statute appears to have been dictated not so much by a desire to restrain unduly the exercise of the prerogative as to avoid lending a semblance of legality to grants which in future might be exercised to the public detriment. Be that, however, as it may, it is clear that, prior to this statute, the Crown and Courts alike recognized two classes of individuals, irrespective of their nationality, as the proper recipients of the royal favour, (1) the bringer-in or importer, (2) the first finder or inventor -- the latter grounding his title to favorable consideration on the fact that he possessed in common with the importer the qualifications of introducing a new industry within the realm. In other words, the rights of the inventor are derived from those of the importer, and not vice versa as is commonly supposed. A closer examination, indeed, reveals the fact that the inventor's rights were at first regarded as of doubtful validity where proof or probability could be adduced of the invention prejudicially affecting an existing industry; as in the case of Lee's application for the stocking-frame, which is said to have been rejected on the ground that the machine proposed to supersede manual labor. And in 1601, in the discussion on the bill 'for the promotion of good arts,' which proposed to invest in the introducer and improver alike a lifelong copyright of their invention, it was objected that all improvements were not profitable to the state, and that the granting of licenses for small additions would breed confusion (D'Ewes, 678), the bill being ignominiously rejected upon the second reading. That the same view was held by the Queen's Courts is shown by the two out of the three cases decided prior to Darcy v. Allin. In the Derbyshire lead-mining case the claims of the assignees of the patent of Humfry & Shultz were disallowed in the Court of Exchequer on the ground that it was 'easier to add than to invent,' the Court holding that the differences exhibited by the ore-sifting apparatus of the plaintiffs and that used at Mendip were insufficient to support the monopoly. A more important case decided before the Council is known as Matthey's [sic] case. The valuable nature of the improvement in Matthew's knife-handles was not disputed by the Cutler's Company, for they alleged that the monopoly would be the ruin of themselves and their families and apprentices (Lansd. MSS). The patent was not upheld, on the broad consideration that the object of the system was the introduction of new industries and not the displacement of old. The position of the improver, as is well known, was not finally decided until 1772.
But it is in respect of what constitutes a new manufacture that the divergence of modern patent law from the spirit of the old system is most clearly seen. The Elizabethan policy aimed beyond question, as a perusal of the grants will amply testify, at the introduction of those industries the products of which had hitherto figured most prominently in the list of imports, viz. alum, glass, soap, oils, salt, saltpeter, latten, etc., etc. Now the proof of a single sale is held to be destructive of the novelty of the invention. So too with the case of disclosure by printed publication. In the sixteenth century the sole test of the monopoly contrary to the law, as defined by Coke, was that the grant should not seek to restrain the public of any freedom or liberty that they had before, or hinder them in their lawful trade. For all practical purposes therefore it was sufficient for the patentee to prove that the industry had not been carried on within the kingdom within a reasonable limit of time to render his grant unassailable on the score of novelty. The tendency of modern legislation to recur to the less exacting standard of novelty may be illustrated in the recent legislation of Germany, Austria, and the amending bill of last session.
On the nature of the patent grant the history of the Elizabethan monopolies throws some new light. The exclusive right of sale, which is supposed to be the kernel of the patent grant, is in point of fact subsequent to and derived from the sole right of manufacture, from which, in the earlier stages of the system, it was by no means an inseparable accident. On the contrary, with the exception of the grant to Verselyn, who obtained an exclusive control over the Venetian glass trade, the rights of the foreign merchant and the discretion of the buyer in the home markets were left absolutely unaffected by these grants, which, accordingly, must be considered as manufacturing and not as commercial privileges. [fn.: This point is important in view of the recent readhesions to the theory of the patent grant advocated by Collier in 1803. (Cf. Frost, Robinson, and the U.S. Patent Centennial Vol. 1891.) According to Collier the patent is a commercial privilege, or right of exclusive sale, and derives its origin from certain analogous privileges supposed to have been conveyed by the charters of the Medieval Trading and City Companies. It is now accepted that these charters were obtained in confirmation of certain prescriptive rights of self-government which had grown up without direct authorization of the Crown. These charters 'were never accounted a monopoly,' Darcy v. Allin, Noy, 182. In the charter of the Hanseatic League, see Anderson's Commerce, vol. i, p 227] The statement that what is known as the working clause is unknown to English patent jurisprudence is now long longer tenable. Apart from the frequent insertion of clauses regulating the period within which new industry was to be introduced, it is obvious that prior to the rise of the patent specification a privilege became void owing to non-working within a reasonable period on the ground of want of consideration. To the clauses stipulating for the employment of native apprentices may be traced the rise of the common law as to the term for which these exclusive licenses could be legally granted. The statutory limitation on the term of the grant to fourteen years (Coke even favored the shorter term of seven years) was avowedly based upon the consideration that the patent should not operate in restraint of trade. It must be admitted that the Elizabethan grants undoubtedly erred on the side of generosity in this respect.
The occasional reservation of a small rent in compensation for the loss of customs concludes the last of the differences which we have found to exist between the two systems. These rents formed part of the consideration of the grant, whereas the modern patent fees are based upon a rough estimate of the cost of the civil establishment.
Within recent years a country, whose industrial and financial position bears at least a superficial resemblance to the England of Elizabeth, has copied on to its statute rolls a law which reproduces almost in its entirety the features of the Elizabethan industrial system. By the decree of September 30, 1892, the Portuguese authorities are empowered to grant monopolies for the manufacture of any new industrial products within the country, or for carrying out particular mining and metallurgical operations within certain geographical zones. A 'new industry' is defined as one not actually in process of working in the country at the date of the application. The grant does not affect the right of importation or sale of similar foreign products. The system is open to foreigners, and a proof of working is required within a definite period. As to the practical working of the system, little information is available at present; but that the law has not remained a dead letter is evident from the numerous applications made for these concessions, and already there are signs that the provisions of the law will be effectual in attracting foreign skill and capital to the country. The practical working of the system should be carefully watched with the view of its possible application to the fostering of certain colonial industries, the birth of which the bonus system has hitherto egregiously failed to stimulate.
E. Wyndham Hulme
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Article from The Law Quarterly Review, Vol 51, July 1897, pages 313-318
On the Consideration of the Patent Grant, Past and Present
[by E. Wyndham Hulme]
Down to comparatively modern times it has been the practice of the Crown to grant monopoly patents for new industries and inventions, without further disclosure of the particular means proposed for carrying these into effect than that vouchsafed by the petitioner in his application for the patent. The anomaly of the later practice of requiring the filing of a specification after the issue of the letters patent suggests that this proviso was in the nature of an after-thought, and formed no part of the original compact between the Crown and patentee. And this view is corroborated by the language of the earlier grants, the final clause [fn.: The history of the clause is as follows: Originally borrowed from a long series of Acts confirming grants of lands, etc., to and from the Crown, it first appears in letters patent for invention in the grant to Actonius in 1565. It reappears about 1617, and thereafter was retained in these grants, with slight modification, down to the year 1883.] of which ran that these instruments should be favorably construed at law, 'notwithstanding the not full and certain describing the nature and quality of the said invention, or of the materials thereunto conducing and belonging.' The object of the insertion of this waiver clause in letters patent for inventions was to secure for these instruments the most favorable consideration in the Courts of Law. The latter were thereby directed to observe the plain intention of the Royal Warrant and to disregard any technical flaws which might have crept into the recitals of these grants, due to unintentional misrepresentation on the part of the applicants. Obviously, at this period of the history of patent law, neither specification nor any other form of written disclosure was required by the Crown in support of its letters patent. No great inconvenience appears to have arisen from the practice of the time, nor was any change in this respect advocated by the Common Law party in 1601, or again in 1623. What, then, was the essential consideration which secured for these grants a special exemption in the Statute of Monopolies? The answer is supplied in Darcy v. Allen and the Clothworkers of Ipswich case: 'the reason wherefore such a privilege is good in law is because the inventor bringeth to and for the Commonwealth a new industry,' etc. The bringing in of new trades or manufactures, therefore, being the whole aim and object of the monopoly system, we should expect to find in the legal text-books a clear indication of the once-existing obligations of the patentee in this respect, and of the modification effected therein by the subsequent development of the doctrine of the patent specification. Yet, it is laid down by Hindmarch in his chapter on the Specification, that a grant was bad at law which contained no technical description in the recital, or in respect of which no specification was required to be filed; and elsewhere the same writer doubts whether the patentee was ever under an obligation to work his grant at all. And, although it is suggested by Webster, on the strength of a private Act passed under the Commonwealth, that the instruction of the public may have been secured by means of the Apprenticeship clause during the period preceding the practice of the patent specification, yet nowhere does this suggestion lead to an acceptance of the truth that the undertaking to work the grant constituted the essential consideration of the early Monopoly system. This proposition we now propose to demonstrate by adducing certain facts obtained from an examination of some early patent grants the text of which still awaits publication.
1. Clauses securing the introduction of the industry within a fixed period appear in grants made in respect to the following industries; No. II, [fn.: To avoid possible confusion it should be stated that the Roman numerals relate to grants made under Elizabeth, copies of which are in the writer's possession. An analysis of these grants, Nos. I - XXII, appeared in the L.Q.R. Apr., 1896. Those quoted with an Arabic numeral refer to the official series which commences A.D. 1617.] saltpeter, one year; No. III, dredging, three months; No. VI, furnaces, two months; No. VII, mine drainage, three years; No XIX, window glass, three months; No. XXIV, land drainage, three years, No. XXXV, water-supply, three years. The list is doubtless imperfect, but is sufficient to disprove the assertion that the 'working clause' is unknown to English Jurisprudence.
2. Where the obligation to introduce the industry is not explicitly expressed it may, nevertheless, be inferred from the existence of equivalent clauses such as the Apprenticeship or Efficiency clauses.
The Apprenticeship clause, which relates to the employment and efficient education of the native artisan, appears in grants numbered XIII, XVIII, XIX, XXXII; and in the Official Series No. 71 (A.D. 1634); 249 (1686); 261 (1688); and 356 (1698). It applied only to foreigners, and was intended to secure the continuity of the industry in case of the withdrawal of the patentees at, or before, the expiration of the term of their monopolies. Clauses providing for the inspection of the manufacture or fixing a minimum output are also occasionally to be found in the patent rolls of Elizabeth.
3. But the truth of our proposition is, perhaps, most clearly to be seen from the analysis of the petitioners' statements and professions which form the groundwork of the recitals of these grants. The statements herein most commonly relied upon consist of declarations to the following effect -- that the petitioner had by the expenditure of time and money become possessed of the secrets of an industry the introduction of which would prove beneficial to the Realm; [fn.: Notice the corresponding change of language in the statutory form of a patent application. Prior to 1852 no stereotyped form was in use. In this year the petition ran: 'that your petitioner is in possession of an invention which he believes will be of great public utility,' i.e., the introduction of which will be, etc. In 1884, this suggestion disappears entirely.] that certain steps towards its introduction had already been effected; that the industry had not hitherto been practiced, etc., etc. In such cases the applicant was bound by his own undertaking and forecast, not only to introduce the industry, but to realize to the full the expectation which the Crown had been led to for concerning it. In other words, the industry, when introduced, must prove both beneficial and sufficient before the patentee could be held to have discharged his liabilities.
We have now to account for the rise of the doctrine of the patent specification in the eighteenth century. When, and under what circumstances, did the Crown commute the obligation to work the industry by the substitution of a proviso requiring a formal disclosure of the inventor's secrets? The absence of statutory authority for the change has frequently been commented upon. The difficulty, however, disappears upon an examination of the original documents in connection with grants containing the first recorded instances of this requirement.
For our purpose it will be sufficient to take (1) Sturtevant's patent and treatise of Metallica, dated 1611-12 (Patent Office. Supplement to Letters Patent No. 1); (2) Nasmyth's patent and Specification dated 1711-12. These grants, which at an interval of a century mark respectively the introduction and revival of the proviso of the specification, prove conclusively (1) that the latter was introduced by the patentee for his own security, (2) that the acceptance of the applicant's offer by the Crown left intact the original undertaking on the part of the patentee.
The facts relating to the grant of Sturtevant are as follows: -- Simon Sturtevant, a manufacturer of tiles, pipes, and other pressed ware at Highgate, applied in 1611 for the exclusive right to the use of certain inventions in connection with the application of coal for smelting iron, and generally for the application of coal as fuel in industries in which wood was then solely employed. With his application the inventor appears to have filed in manuscript what he terms a 'treatise of Metallica'; and this treatise he further covenanted to supplement by a final and more explicit statement to be printed and published within a fixed period after the letters patent. This anticipation of the modern system of provisional and complete specification is in itself sufficiently curious. But Sturtevant not only anticipates the practice but, to some extent, the entire modern doctrine of the specification. At the end of his final 'treatise of Metallica' the author gives his reasons for the unusual course he had elected to adopt. They were (1) that it might appear that his inventions were new, and of his own devising, and not stole from any other; (2) that the endeavours and inventions of other men, being different from his own, might not be prevented by him; (3) that none other should hereafter presume to petition His Majesty for inventions identical with those described by him; (4) that he was bound by the proviso (which he had caused to be inserted) in his grant, whereas he was not tied to any time for the trial of his inventions. But in respect of this last assertion Sturtevant's doctrine proved to be in advance of his times, for his patent was canceled in the following year on the ground of his outlawry and neglect to work the patent. The patent was reissued, subject to similar conditions, to one Rovenzon, who published a third treatise on the subject. But the fact upon which we wish to insist here is that the modification of the procedure was due to the suggestion of the patentee and not of the Crown.
In the case of Nasmyth's patent the same fact has to be recorded. The petition and report of Sir Edward Northey -- the Attorney-General -- are still preserved at the Record Office (State Papers Dom. Anne. Bundle 19, No 161), but, as the latter is a purely formal document, we prefer to quote from the original unpublished grant upon the patent rolls, which clearly recites the circumstances under which this proviso was again introduced.
Patent Rolls, 10 Anne. Part 2
'Anne, etc., Whereas John Nasmith of Hamelton in North Britain, apothecary, has by his petition, represented to us that he has at great expense found out a new Invention for preparing and fermenting wash from sugar "Molasses" and all sorts of grain to be distilled which will greatly increase our revenues when put in practice which he alleges he is ready to do "but that he thinks it not safe to mention in what the New Invention consists until he shall have obtained our Letters Patents for the same. But has proposed to ascertain the same in writing under his hand and seal to be enrolled in our high Court of Chancery within a reasonable time after the passing of these our Letters Patents," etc.'
From these cases we may deduce the origin of the specification, viz. that the practice arose at the suggestion and for the benefit, of the grantee with the view of making the grant more certain, and not primarily as constituting the full disclosure of the invention now required at law for the instruction of the public.
This theory harmonizes with what is known of the practice of the sixteenth and seventeenth centuries. So long as the monopoly system aimed at the introduction of new industries such as copper, lead, gold, and silver mining, or the manufacture of glass, paper, alum, etc., etc., the requisition of a full description would have required a treatise rather than a specification,and would have materially detracted from the concession offered by the Crown, besides constituting a precedent for which no sufficient reason or authority could have been adduced. But when, by a natural development, the system began to be utilized by inventors working more or less on the same lines for the same objects, the latter for their own protection draughted their applications with a view of distinguishing their processes for those of their immediate predecessors, and of ensuring priority against all subsequent applicants. Hence, while the recitals of the sixteenth century deal almost exclusively with suggestions of the advantages which would accrue to the State from the possession of certain industries, or with statements respecting steps taken by the applicants to qualify themselves for the monopoly, those of a later date not infrequently deal with the technical nature of the proposed improvement. These recitals, therefore, while forming no part of the consideration of the grant, are undoubtedly the precursors of the modern patent specification. Between 1711 and 1730 the wording of the proviso (when the latter appears among the general covenants of the grant) distinctly recognizes the proposal as emanating from the applicant -- 'whereas A did propose to ascertain under his hand and seal, etc., etc;' but about the year 1730 the form of a proviso voiding the grant in case of the non-filing of a specification was substituted. Still the practice of requiring a specification cannot be said to have been recognized as essential to the validity of a grant prior to the middle of the eighteenth century.
In 1770, Lord Mansfield, in Liardet v. Johnson -- a trial which may be regarded as a landmark in the history of English patent law -- invested the patent specification with a character and function totally distinct from that with which it had been originally introduced. For the facts of this case we have mainly to rely upon the memory of Bramah, who was present at the trial, and who subsequently incorporated his account in a letter published some years later. From this source we gather that the doctrine of the instruction of the public by means of the personal efforts and supervision of the grantee was definitely and finally laid aside in favor of the novel theory that this function belongs to the patent specification -- an instrument introduced by the irony of fate to make the grant more certain! At the same time the novelty of the invention was subjected to a new and more searching test.
Hitherto the novelty of no grant appears to have been successfully challenged except on the ground of prior user within the Realm, but in this trial the practice of what is known as the 'mosaic of anticipation,' was admitted in impeachment of the Inventor's privilege. [fn.: A list of the anticipations relied upon will be found in an anonymous pamphlet entitled 'An Appeal to the Public on the right of using oil-cement, 1778.'] So complete a volte-face could hardly have been effected if the history of the law had preserved some sort of continuity. This however does not appear to have been the case.
For a period of over a century the reported cases are destitute of any decision of importance in this branch of jurisprudence. Edgeberry v. Stephens attests a tendency to rely upon a verbal criticism of the Statute of Monopolies rather than upon the earlier practice, of which that statute is professedly an exponent. At the end of the eighteenth century, therefore, the Common Law Judges were left to pick up the threads of the principles of law without the aid of recent and reliable precedents.
The rapid and unprecedented development of the patent system, stimulated by the mechanical inventions of Arkwright, Watt, and others, excited at once the admiration and jealousy of the manufacturing classes. The constitutional nature of these grants was again called in question, and an attitude of rigorous rather than benevolent interpretation was commonly assumed in the Court of Common Law. Hence under the new industrial conditions, and with the changed interpretation of the Statute of Monopolies, it is not surprising that a pronounced divergence should have taken place between the two systems; the leading characteristics of which may be thus tabulated: --
Sixteenth Century End of Eighteenth Century
Consideration of the grant the Consideration of the grant the
introduction of the industry. written disclosure of the
Formal disclosure of the invention. No proof of working
invention waived by the Crown required.
Patents of addition of Patents of addition good at law.
doubtful validity.
Crucial test of monopoly prior Crucial test of grant absolute
user within the realm within novelty of the invention both
the memory of man. in practice and as regards the
published literature of the Art
within the Realm.
Prior sale not prejudicial. Prior sale fatal to the validity
of patent.
E. Wyndham Hulme.