THE

ENGLISH PATENT SYSTEM

PART I

GENERAL ASPECTS OF THE
PATENT SYSTEM

The English Patent System is no sudden growth; its roots lie hidden beneath the thickets of medievalism. A comprehension of the System and an appreciation of its present position may best be attained by a study of the past, and a retracing of its development to beginnings.

In the first place, and before treating in detail the presentday law, a brief history of patents from the Middle Ages to the dawn of the twentieth century will be given. As the natural sequence, exposition of modern policy in relation to patents can follow. The jurisprudential side of patents and the rights conferred thereby can next claim attention, after which a few legal considerations that bear upon the commercial value of patents may be touched upon.

CHAPTER I

A Brief History of English Patent Law

The Statute of Monopolies, passed in 1624, in the twenty-first year of the reign of James I., is commonly regarded as the starting point of the modern law. This popular view on the subject is incorrect. The famous Statute, so far as it concerned inventions,

his Company to manufacture salt, and in 1452 to miners from Bohemia, are typical instances. On the other hand, many

attempts, statutory and otherwise, were made by those having vested interests to favour the native craftsman at the expense of the immigrant.

The motive which underlay the system of inviting and protecting foreign artificers was at length distinctly enunciated, among others, by Chancellor Moreton, who, in his message to Parliament in the reign of Henry VII., alluded to the desirability “that our people be set on work in arts and handicrafts; that our realm may subsist more of itself; that idleness be avoided, and the drawing out of our treasure for foreign manufacture stopped."

ORIGIN OF THE PROHIBITORY CLAUSES IN PATENTS

After the conscious perception of the advantages due to the introduction of industrial methods, the addition to the mere protection for the alien craftsman of the privilege of freedom from competition naturally followed. When this took place the patent of the present day had made its appearance, and the process of specialisation, which now so clearly distinguishes patents for inventions from other franchises, and patents of nobility, commissions, grants of offices, and such like, had begun.

The motives that led to the encouragement of aliens were manifestly also applicable to the encouragement of the home worker, who by his ingenuity could assist in removing the necessity for importing manufactured articles. When this was recognised, the native patentee took his place in the industrial system, and the foundation of the modern law relating to patents for inventions was laid. Subsequently, other motives for the granting of patents emerged. Thus the establishment of a new industry might afford a livelihood to the agriculturist who had been thrown out of employment owing to the reversion of arable land to pasturage. Again, the monopolies, whether for new industries or for

reign and subsequently. Interference with an existing industry was, for instance, the plea upon which Matthews's Patent, of 1571, for making knives with bone hafts and plates of latten, was upset.

Nowadays the same point arises when a patent is contested. It appears in the form of the question whether the invention is sufficiently removed from what others would do without prompting, or have hitherto been in the habit of doing, to enable the patent granted therefor to be upheld. This question of "sufficiency of subject-matter" has been answered differently at different periods. The answer is correlated with the progress of the times and with the condition of the manufacturing arts. Until late in the eighteenth century, the question of the validity of a patent granted for a mere improvement in an old manufacture was still an open one. At the present day, it is settled that small improvements may be protected by patent, provided they exhibit a certain minimum of merit.

The last year of Elizabeth witnessed the action brought by Darcy against Allein for infringement of the patent which had been granted to Darcy in 1598 for the exclusive importation and trade in playing-cards. The case is remarkable for its enunciation of the legal principles by which the validity of patents was to be tested. The Court decided that the grant was illegal and a monopoly contrary both to common law and to statute. The following passage which occurs in the argument of Counsel for the Defendant has achieved worldwide celebrity:

"Where any man by his own charge and industry, or by his own wit or invention doth bring 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; that 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."