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Infringement of Patents.
Of Injunctions to restrain Infringement of Patents.
· The prerogative of granting patents for monopolies, which was at all times a grievous oppression to the subject, had been so flagrantly abused by the Duke of Buckingham (and as it seems not without the connivance of the king (a)), that in the year 1621 proceedings were instituted in parliament against the principal monopolists, and the favourite was compelled to abandon his creatures to justice (b). Two years afterwards an act of parliament was passed for their utter abolition (c), which is said to have been in a great measure prepared by Sir E. Coke, who was chairman of the committee of the House of Commons, to which the bill was referred, and who has elaborately commented upon it in his third Institute (d).
It was declared by that act, that all monopolies Statute and all commissions, grants, licences, charters, and 2.3.4
21 Jac. 1. letters patents for the sole buying, selling, making, working, or using of any thing within this realm, or
(a) Rapin, sub anno 1621.
(6) Vide the proceedings against Sir Giles Mompesson and Sir Francis Mitchell (the Sir Giles Overreach and Justice Greedy of Massinger). 2 How. St. Tr. 1119. 1131. 1 Cobb. Parl. Hist. 1198. 1242.
(c) 21 Jac. 1. c. 3.
Infringement the dominion of Wales, or of any other monopolies; of Patents.
or of power, liberty, or faculty to dispense with any others; or to give licence or toleration to do, use, or exercise any thing against the tenor or purport of any law or statute: or to give or make any warrant for any such dispensation, licence, or toleration to be had or made; or to agree or compound with any others for any penalty or forfeiture limited by any statute ; or of any grant or promise of the benefit, profit, or commodity of any forfeiture, penalty, or sum of money due by any statute before judgment thereupon had; and all proclamations, inhibitions, restraints, warrants of assistance, and all other matters and things whatsoever, any way tending to the instituting, erecting, strengthening, furthering, or countenancing of the same, or any of them; are altogether contrary to the laws of this realm, and so are and shall be utterly void and of none effect, and in no wise to be put in use or execution..
By the sixth section a power is reserved to the king to grant letters patent and grants of privilege for the term of fourteen years or under, for the sole working or making of any manner of new manufacture within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use, so as they be not contrary to the law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient (a).
(a) Notwithstanding this act of parliament, Charles I. made no scruple of granting a great number of patents for monopolies of
No provision was made by this act to secure a Infringement description, by which the public might be enabled of Patents.
haureu to manufacture the new invented article at the ex-Specification piration of the term granted to the patentee (a). It not required
by the act. was not till towards the latter end of the reign of Queen Anne that any such provision was thought. i of, when it was deemed advisable by the law officers, i of the crown, to insert a proviso in the patent, that a. specification of it should be enrolled in Chancery,is within a given period from the time of its having passed the great seal (b). i.
The time allowed for enrolling the specification Time rewas varied at different periods; having at first enrolling
quired for usually been four months from the day of the date specification. of the letters. patent, but when Lord Alvanley was!! Attorney-general this time was reduced to one is calendar month (c). It is at present usually two!t months.
It is however, in matters of importance, freuil quently extended; and if the inventor makes an )
various kinds, by which, as observes Lord Clarendon, unjust projects of all kinds, many ridiculous, many scandalous, and all very i grievous, were set on foot.-Hist. vol. 1. 53. Rapin, anno 1629.,
(a) It is very remarkable how common the error appears to have been, not only at the bar but on the bench, that the enrolment of a specification was a condition required by the act of pará liament.-Dav. on Pat. 67. (6) Dav. on Pat. 8.
. :**13 (c) Dav. on Patents, 10. It has been holden, upon the con- lt struction of the usual proviso, that the month does not begin to run till the day after the date of the patent; and that accordingly, where the patent was dated the 10th of May, the specification was??? enrolled in time on the 10th of June following.-Watson v. Pears, 2 Campb. 294.
Infringement affidavit that it is his intention to apply for patents of Patents.
for Scotland and Ireland, it is usual to allow six
months (a). Enrolment The enrolment of a patent cannot be dispensed cannot be dispensed
with ; and if it has once passed the great seal, the with.
date of the patent can neither be altered, nor can the time for the enrolment be extended without an act of parliament (6).
What the subject of a patent.
The doctrine upon the subject of patents will be found to be most conveniently arranged under the two following heads :-1st, What species of manufacture is the proper subject of a patent: and, 2dly, What sort of description is required in the specification.
1st. What is the subject of a patent. Patents were formerly considered as injurious monopolies, and were construed by the courts with great strictness. But now, when a more liberal and just view of the subject prevails, they are considered as advantageous to the public, by holding out encouragements to ingenious men to disclose their inventions. Lord Eldon has repeatedly represented them as bargains between the inventors and the public, to be judged of on the principles of keeping good faith, by making a fair disclosure of the invention, and to be construed as other bargains (c).
(a) Dav, on Pat. 10.
(6) Ex parte Beck, 1 Bro. C. C. 578. Ex parte Koops, 6 Ves. 599.
(c) Cartwright v. Arnott, cit. 11 East, 107. 14 Ves. 136.
The only term used in the statute is that of Ma- Infringement nufacture, which was much approved of by Mr. Off
se hur of Patents. Justice Heath, as precluding all nice refinement; it gives us to understand the reason of the proviso, that it was introduced for the benefit of trade, and that the subject ought to be that which is vendible, otherwise it cannot be a manufacture (a). In the same case it was observed by Lord C. J. Eyre, that the word “manufacture” was of extensive signification ; that it applied not only to things made, but to the practice of making; to principles carried into practice in a new manner, to new results of principles carried into practice. Under things made he classed new compositions of things, such as manufactures in the most ordinary sense of the word; secondly, all mechanical inventions, whether made to produce old or new effects. Under the practice of making he classed all new artificial manners of operating with the hand, or with instruments in common use, new processes in any art producing effects useful to the public. He observed, that when the effect produced is some new substance or composition of things, it should seem that the privilege of the sole working or making ought to be for such new substance or composition, without regard to the mechanism or process by which it has been produced, which, though perhaps also new, will be only useful as producing the new substance.
The case from which these observations are taken As to the arose upon the patent obtained by Mr. Watt, for his thod and celebrated improvements upon the steam engine, principle.
(a) 1 H. B. 482.