« ZurückWeiter »
THE LAW OF LETTERS-PATENT,
THE SOLE USE OF INVENTIONS
THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND;
THE PRACTICE CONNECTED WITH THE GRANT:
TO WHICH IS ADDED
PRINCIPAL FOREIGN STATES;
UUith an Appendir
OF LINCOLN'S INN, BARRISTER-AT-LAW.
Humani generis progressus, ex communi omnium labore ortus,
uniuscujusque industriæ debet esse finis.
Law Bookseller and Publisher;
The present will be found to differ in some material respects from other Treatises on Patent Law. Were it not so, I should feel even greater diffidence than I have in venturing on a field, which, so far as learned research and elaborate attention to detail can give a title, Mr. Hindmarch and Mr. Webster may be said to have made peculiarly their own.
Hitherto (and by the authors above mentioned, among others) this subject has been treated as a branch of Royal Franchises conferred through the instrumentality of Letterspatent at the mere motion of the Crown, the grant in this instance flowing from it in its character of Patron of industry, ingenuity and skill.
An entirely different hypothesis has been here assumed to underlie the structure of Patent Law-one which admits of its leading questions being discussed on broad general principles, instead of by reference to rules framed for purposes alien to inventions, and but imperfectly applicable to the contingencies of modern trade. It places the grant on the footing of a privilege, resulting from a contract in restraint of trade, between the Crown (as representative of the public) and the Patentee, and considers its de facto character as a Royal grant to influence the question (as will be seen by the decided cases) to a very inconsiderable extent. If simplicity of arrangement be any criterion of the true solution, the supposition here proceeded on would appear to be of solid foundation. Referred to it, the “subject matter” (or “invention,” the terms being interchangeable), elsewhere so minutely yet variously described, admits of a definition at once comprehensive and concise—as “the material result of an unpublished improvement in the manufacture of articles for public use.” It is this which forms the leading feature in the scheme. The person of the Patentee becomes in comparison with it a subordinate idea,a as “the first publisher by means of a Specification of the invention.” It furnishes, moreover, the key to the questions which have arisen on the sufficiency of the Specification and other points, and which, as hitherto discussed, can hardly be said to have been satisfactorily disposed of.
The theory is no new one. As the compromise of a great contest between Sovereign and people, the Law was settled, on the issue of that contest, with regard to the great principles it involved-principles which, with scarcely any exceptions, have regulated the administration of the grant from the passing of the Statute of Monopolies to the present day.
a This was the view entertained of our Law by the late Mr. Justice Story, who, in a case (Earle v. Sawyer, sbingle-mill, 4 Mas. 8), so long since as 1825, thus expressed himself: “ How indeed can it be possible that an English Court should deem some intellectual labour beyond the novelty of the combination necessary for a Patent, when it is the acknowledged Law of England (different in that respect from our own), that the first importer of an invention known and used in foreign parts may be entitled to a Patent as the inventor in England? What of intellect is employed in the mere importation of a known machine? An inventor in the sense of the English Law is the first maker or constructor or introducer in England."
Contrast, for instance, the language used in the early trials of monopoly cases and that of the present day with such as the following words of a Lord Chancellor—" If the King refused the Patent, it would be upon reasons very unfit for me or any one to dispute, because it rests entirely in his Royal breast, and it cannot be in one more honourable." Per Lord Thurlow, L. C., Er parle O'Reily (1790), 1 Ves. jun. 112.
On the general policy of State guarantees for the exclusive use of new inventions, some remarks will be found in the Introductory Chapter, selected from the leading writers on Political Economy, and the evidence adduced before the Select Committee of the House of Lords in 1851. With reference to the latter and the tone assumed in the discussions of Parliament on this head, public opinion appeared to be equally balanced, assertions the most contrary being very confidently put forward by authorities equally entitled to the highest respect. On all sides the question was felt to be one of considerable importance to the manufacturing interests of the country, and one in which a false step in legislation might be attended with consequences seriously affecting the relative position it occupied
c“My general opinion is, that Patents should be granted free of all expense, and that in place of being considered as monopolies which are injurious to the public, they should be regarded as benefits conferred upon it, and therefore encouraged by every possible means. I think that Patents should be readily granted for every new idea, whatever that idea may be, that every encouragement should be given to persons to bring forward such ideas. The history of science shows that such ideas have often led to very great and important results, and hence I am of opinion that to every idea connected with science and art the proteetion of a Patent should be freely extended." (Evid. 2426, Sir D. Brewster.)
“All just inventions are arrived at by a long series of steps, and those persons who have made the discovery of the great principle upon which they are founded are not the persons who really benefit by them. I think the system defective in principle.” (Evid. 2828, Sir J. Romilly, M.R.)
Q. Did not reading the evidence taken before the Committee of the House of Commons in 1829, strongly impress your mind with the multiplicity, the extent and the unavoidable character of the various difficulties and inconveniences which attend the existing Patent Laws.
A. There is no doubt of that.
Q. Did it not also impress you with the conviction of the impossibility of making any effectual struggle towards overcoming those difficulties.
A. I think so. -(Evid. 2298, Colonel Reid.)
Lord Granville (President of the Select Committee of the House of Lords in 1851) was of opinion “that the whole system was unadvisable for the public, disadvantageous to inventors, and wrong in principle." (118 Hansard, 14, 1 July, 1851.)