Patent System in United Kingdom

History of the Patent System in England

The following information about Patents, and the Patent System. is from the Cyclopaedia of Political Science, Political Economy, and the Political History of the United States by the Best American and European Writers (1899).

The origin of the patent system has been remotely traced to the guild monopolies which were a dominant feature of the urban industries of mediæval Europe. In its modern aspect and theory, however, the system bears no resemblance to the exclusive and grasping trades customs which brought the guilds into reproach; and it is generally conceded that the existing practice of letters patent for inventions is distinctively English in its origin. The form of the grant of a patent of invention can be directly traced to the exercise of the ancient prerogative of the English crown in its grants of exclusive privileges. The arbitrary and indiscriminate exercise of this prerogative resulted in the oppressive and galling monopolies which were abolished in the constitutional struggles of the seventeenth century. The grant of monopolies for inventions, on the other hand, seems always to have been regarded as just [124] and constitutional. These were excepted from the sweeping prohibitions of the great statute of monopolies, enacted in 1624; and upon the provisos of that act there has been reared the modern English patent system, which in its essential features has been extended into nearly every civilized state.

-The earliest recorded exercise of the prerogative of the English crown, in a manner analogous to the grant of a patent, was the grant by Edward III. to two aldermen of a patent of privilege that they and their assigns should have the sole making of the philosopher’s stone. Privileges of this nature, although rare at this early period, seem not to have been considered anomalous, for it is stated in a case reported in the Year Book, part iv., 40, Edw. III., fol. 17, 18, that arts and sciences which are for the public good are greatly favored in the law, and the king, as chief guardian of the common weal, has power and authority by his prerogative to grant many privileges, although prima facie they appear to be clearly against common right.

On the other hand, the early popular and judicial disapproval of mere monopolies is shown by the fact, that about the end of the reign of Edward III., John Peechie, of London, was severely punished for procuring a license under the great seal for the exclusive sale of sweet wines in London. (3 Inst., 181.) Two centuries later, grants of patents, as well as of mere monopolies, had become less unusual. The reports of cases decided in the reign of Elizabeth contain dicta from which it appears, that, by the beginning of the seventeenth century, the English lawyers and judges had attained to something approaching the modern conception of patents. In the ninth year of Elizabeth a patent was granted to a Mr. Hastinges of the sole trade for several years of making frisadoes, in consideration that he had brought the method of making them from Amsterdam.

This patent was considered valid until it was shown that some clothiers had, before its date, made baize of a similar material. (Noy Rep., 182.) In another case decided in this reign, a patent having been granted for the sole and only use of a sieve, or instrument for melting lead, it was said in the court of exchequer chamber, that the question was, whether it was newly invented by the grantee, whereby he might have the privilege of exclusive power over it, or else used before, in which case they were of opinion that he should not have the sole use of it. (Noy Rep., 183.) But the strongest of these early cases is Darcy vs. Allein, decided 44 Elizabeth, which contains the following:

“Where any man by his own charge or industry, or by his own wit or invention, brings any new trade into the realm, or any engine tending to the furtherance of a trade, that never was used before; and that for the good of the realm; in such cases the king may grant to him a monopoly patent for some reasonable time, until the subjects may learn the same, in consideration of the good that he doth bring, by his invention, to the commonwealth; otherwise not.”

-These cases contain the common law germs of our existing systems of patent law. In the next reign was passed (1624) the statute of monopolies, which seems to be the first statutory recognition of patents for inventions, as it is also the final parliamentary denunciation of mere monopolies. The proviso of this statute, which is still the foundation of English patent law, is as follows:

Provided also, and be it enacted, that any declaration before mentioned shall not extend to any letters patent and grants of privileges for the term of fourteen years or under, hereafter to be made, of the sole working and making of any manner of new manufacture within the realm, to the true and first inventor or inventors of such manufacture, which others at the time of making such letters patent shall not use, so as also they be not contrary to law, or hurtful of trade, or generally inconvenient.

This statute is regarded as merely declaratory of the common law, and the following essentials of a valid patent are enumerated by Sir Edward Coke in his Institutes:

• First, it must be for the term of fourteen years or under.
• Secondly, it must be granted to the first and true inventor.
• Thirdly, it must be of such manufactures, which any other at the making of such letters patents did not use; for albeit it were newly invented, yet if any other did use it at the making of the letters patents, or grant of the priviledge, it is declared and enacted to be void by this act.
• Fourthly, the priviledge must not be contrary to law: such a priviledge as is consonant to law, must be substantially and essentially newly invented; but if the substance was in esse before, and a new addition thereunto, though that addition make the former more profitable, yet is it not a new manufacture in law; and so it was resolved in the exchequer chamber, Pasch, 15 Eliz., in Bircot’s case for a priviledge concerning the preparing and melting, etc., of lead ore; for there it was said, that that was to put but a new button to an old coat; and it is much easier to adde then to invent. And there it was also resolved, that if the new manufacture be substantially invented according to law, yet no old manufacture in use can be prohibited.
• Fifthly, nor mischievous to the state by raising of prices of commodities at home. In every such new manufacture that deserves a priviledge, there must be urgens necessitas, and evidens utilitas.
• Sixthly, nor to the hurt of trade. This is very material and evident.
• Seventhly, nor generally inconvenient. There was a new invention found out heretofore that bonnets and caps might be thickened in a filling mill, by which means more might be thickened and filled in one day then by the labours of fourscore men, who got their livings by it. It was ordained that bonnets and caps should be thickened and fulled by the strength of men, and not in a fulling mill, for it was holden inconvenient to turn so many labouring men to idlenesse.

If any of these seven qualities fail, the priviledge is declared and enacted to be void by this act, and yet this act maketh them no better then they should have been, if this act had [125] never been made, but only except and exempt them out of the purvieu and penalty of this law. (Coke, 3 Inst., 184.)

-In spite of its crude economic notions, this commentary is an interesting and instructive epitome of the early English patent law. It throws light upon the origin of not a few of the legal doctrines which are the foundation of the patent laws of more modern times. Moreover it may be regarded as embodying nearly all of what continued to be the learning in this branch of jurisprudence for more than a century and a half after Coke’s time. The system continued in a comparatively rudimentary condition until near the end of the last century. One or two incidents in its history should, however, be noticed. In 1639 a proclamation was issued, abolishing all patents for new inventions not put in practice from the date of their respective grants.

A still more important change was effected during Queen Anne’s reign. Prior to this time the only recorded description of the invention or discovery protected by patent, was contained in a few words, giving merely the name of the process or the purpose of the invention. But about this time the practice was introduced, appearing first in Hill’s patent granted in 1713, of requiring a patentee to cause a specification or complete description of his invention to be inrolled in Her Majestie’s High Court of Chancery within a certain time, generally two or three months, of the date of the patent.

This practice ultimately became general; and the theory then arose that the grant of a patent constituted a sort of contract between the patentee and the state, whereby the patentee was protected in the exclusive practice of his invention in consideration of his furnishing in the specification a complete description of his invention for the public benefit after the expiration of his patent. The specifications of some of the earlier patents throw a curious light upon the economic notions of the people. Weisenthal’s specification (1755) was for Working Fine Thread in Needlework, after the Manner of Dresden Needlework, and for erecting a Manufacture of that Sort in this Kingdom so as to be of Public Utility, and enable Poor Girls of Eight Years Old to maintain themselves without being burthensome to the Parish to which they belong.

Other patents were granted for the few crude scientific discoveries and inventions of the time. No material progress was made, however, in the further development of the patent system until, at the end of the last century, a series of important discoveries was made which heralded the beginning of a new era in the physical sciences. These inventions were patented, and the patents became the subjects of contests which ended in a series of adjudications, beginning with Arkwright’s case in 1785, in the course of which there were discussed and settled many of the fundamental principles of patent law. The inventions of Watt, and Hargreave, and Crompton, and Cartwright, soon directed attention upon the patent laws. Stimulated by the example of these men and by the hope of reward, men began to devote their energies to devising improvements upon the crude methods then employed in the industrial arts.

The number of inventions rapidly increased; and while in 1750 the number of English patents granted was only seven, in 1800, ninety-six were issued; in 1825, two hundred and fifty; and the British patent office now issues annually between three and four thousand patents. The last steps in the development of the English system were the passage of the act 5 and 6 Wm. IV., c. 83, in 1835, and the patent law amendment act in 1852, which brought the system into its present condition; and finally, during the present year (1883), there has been passed an Act to amend and consolidate the law relating to patents for inventions, registration of designs and trademarks.’ This act makes certain changes in the present law which are to go into effect Jan. 1, 1884.