Savings for
Scotland,

During an action for infringement a patentee may obtain liberty from the court to apply at the Patent Office for leave to amend his specification, and the court may decide that in the meantime the hearing of the action shall be postponed (b).

The Act contains special provisions and reserIreland, and vations as to legal proceedings in Scotland, Ireland, and the Isle of Man (c).

the Isle of

Man.

Property in invention.

(B)-SUBJECT-MATTER OF LETTERS PATENT.

The right of property in movable chattels has been recognised by all nations in the earliest stages of their existence; but, although ancient nations, and more especially the Egyptians, frequently rewarded inventors, yet the right to the sole use of inventions was only conceded when considerable progress had been made in arts and manufacture, and, as far as one can judge, first of Reward of all to inventors in this country. It is true that

invention.

many writers have maintained that the principles of what is termed universal equity entitle each inventor to an exclusive property in his particular invention. That the right of an inventor is not,

the names and addresses of the persons using at those places the invention, it was held that the plaintiff was not bound to apply for further particulars, but could apply for leave to administer interrogatories.

(b) See s. 19.

(c) Ss. 107-112.

ground of

expediency.

however, to be supported on this ground, but on that of public expediency, will appear from the following considerations: Any invention at first exists only as an idea in the mind of the inventor; On the but in a mere idea it is clear that, apart from the public provisions of an express enactment, there can be no property, which can only arise when the idea has been converted into something tangible. When something tangible has been produced by the inventor he acquires property through the use of his invention, and he retains the exclusive power of augmenting this property, so long as no other person, by reason of independent invention or the disclosure of the secret, becomes possessed of the power of producing what is in effect identically the same property. As soon, however, as the invention is known to others the inventor loses this exclusive property in his invention, for, unless he is protected by the municipal law of the country in which he lives, nothing he has done gives him the right to hinder such persons as may please from making or using articles made according to his invention. The interest, therefore, of the inventor when not protected by the State is to keep his invention secret as long as possible. The adoption of a policy of secrecy has, however, not been found to be of much benefit to inventors, inasmuch as the precautions they are obliged to take in guarding against the disclosure of their inventions hampers their trade

Patents granted by Crown for

and prevents them deriving an adequate reward for their expense and trouble. On the other hand, the public do not derive much advantage from the inventor's labour, for articles manufactured under these circumstances are necessarily costly, the supply limited, and very frequently the knowledge of the art and manufacture is altogether lost.

To remedy this state of things the State steps in and rewards the inventor in consideration of the disclosure of his invention to the public, by the grant of patent privileges for a limited period. This has been found to be the most convenient method of rewarding inventors, for their remuneration is in proportion to the benefit they confer upon the public, and only those in the State who use the invention have to contribute towards the payment of the reward (a).

In accordance with this view the law of England public good, never regards inventors as being as of right entitled to letters patent granting them the exclusive use of their inventions. Thus the inventor must petition the Crown, who, as the form of letters patent states, grants the request as a matter of grace and favour, for the encouragement of invention and for the public good (b). This power of granting patents therefore resides in the Crown alone, to be exercised only on

(a) 2 Bl. Com. cc. 1, 24—26. Hindmarch on Patents— Introduction.

(b) Form of patent, second and fourth recitals, p. 172.

behalf of (c), and for the benefit of (d), the public. Thus it cannot be conferred on a subject, and no private person can create (e) a legal monopoly (ƒ).

Invention

protected by

law.

It would appear that the common law, though it has always permitted limited monopolies in the common shape of an exclusive right to use new inventions, declared almost every other kind of monopoly to be illegal; and the judges of the land did not scruple to repress grants of monopolies so declared illegal when made by the sovereign in defiance of the law. Nevertheless such grants were constantly made, nor did Parliament successfully dispute the Crown's prerogative till it grew seriously inconvenient, when at length, owing to its repeated encroachmentsmore especially in the reigns of Elizabeth and of James I.-the Statute of Monopolies was passed, Statute of in the 21st year of the latter reign, which finally declaratory checked these illegal grants (g).

The legal monopolies, or sole rights of sale, which had always been allowed by the common law, were expressly excepted from the operation of the statute; and among these there were exempted,

(c) Per Lord Eldon in Harmer v. Playne, 14 Ves. 132. (d) Bac. Abr. Tit. Prerog., and see Year Book, 40 Edw. III. fol. 18.

(e) 3 Shep. Abr. Prerog. p. 57, s. 7, p. 54.

(ƒ) Hawk. P. Cr. Bk. 1, c. 79.

(g) 21 James I. c. 3, s. 46, to this Act, p. 93; see Macaulay's History of England, iv. 127; Hindmarch on Patents, Ch. 1&2.

Monopolies

of common

law.

matter" invention."

Section 6. by s. 6 (h) "the sole working or making of any manner of new manufactures within this realm . . . . which others at the time of making such letters patent shall not use. . . . ." Upon these words and the remainder of the section there have been numerous judicial decisions, and from these we derive our knowledge of what is proper subject-matter for valid Subject- letters patent. This subject-matter is termed "an invention," but the ordinary meaning attached to this word must be distinguished from its technical meaning. In the popular sense there are many ingenious schemes or ideas which are termed "inventions," but would not form valid subject-matter Methods of for letters patent, such as financial projects, methods of advertising not embracing mechanical inventions, and designs for ornamentation. When used in connection with letters patent the term "invention' ought to be understood only in its technical sense, as defined by this Act (i)—"any manner of new manufacture, the subject of letters patent and Meaning of grants of privilege within s. 6 of the Statute of declaration Monopolies." Thus, when an applicant makes the

advertising,

etc.

words in

"to be in possession of an invention."

declaration required by the Act of 1883 (j), and affirms that he is in possession of "an invention," he must be supposed to mean that he is in the possession of a new manufacture within this realm of such a nature that he believes it to be valid

(h) S. 6, given in full on p. 93.

(i) General definition, s. 46.

(j) S. 5, sub. 2.