light difference or invention should be no cause to restrain them, whereupon he could never have benefit of this patent, although he laboured very greatly therein. "Lastly, the monopoly patent granted to one Humphrey, of Humphrey's the Tower, for the sole and only use of a sieve or instrument patent. for melting of lead, supposing that it was of his own invention, and therefore prohibited all others to use the same for a time. And because others used the like instrument in Derbyshire, contrary to the intent of his patent, therefore he did sue them in the Exchequer Chamber, by English bill. In which court the question was, whether it was newly invented by him, whereby he might have the sole privilege, or else used before at Mendiff, in the west country, which if it were there before used, then the court were of opinion that he should not have the sole use thereof." The definition of the term monopoly in the preceding extract, is strictly consistent with its original meaning; and the above exposition of the law, and the cases cited, point out the distinction between a monopoly which is void, and a monopoly which is valid. Bircot's case, of a privilege concerning the preparing and melting of lead ore (post 31, n. p.), farther illustrates this distinction. Exclusive sale. These early cases show that other exclusive privileges were associated with that of sale, and it may be suggested whether a grant in which such other privileges are not so associated, would not, on the face of it, be bad in law; ; as, for instance, the exclusive privilege of sale of an imported article not known in this country as an article of manufacture. The per son introducing the manufacture of such article would be entitled to the exclusive privilege of sale of the article so made, on the principle above stated (p. 5); and if he supplied the demand as well as it had been previously supplied by importation from abroad, that is, with an article as good in quality and as cheap in price, it would appear on the authority of the subsequent cases of the smalt and glass patents, and on the general policy of the law, that he would be protected in such exclusive sale during a limited period. The exercise of this privilege is the practical means by which the grant becomes oppressive and prejudicial to the public. It is important, therefore, in tracing down this branch of the common law, to show how cautiously this privilege was guarded in the early grants, and to compare the terms of the earlier letters patent with those of the present day, since much is to be learned from precedents of such long-continued use. The letters patent consist of a granting and a prohibitory part, and an important distinction is to be observed in the words employed. The smalt patents, in the granting part, grant to make, work, and compound the said stuff called smalt, and the same so made, wrought, and compounded, to utter, sell, and put to sale; and in the prohibitory part, prohibit the practising, using, and exercising the said invention, omitting the words relating to the sale, which is not therefore expressly prohibited, except as impliedly a part of the using, exercising, and putting in practice, the invention. The same is to be observed in Dudley's, or the iron patent (post, 14, 15,) and in Mansell's, or the glass patent (post, 21, 22, 23). In the letters patent as at present granted, the words utter, sell, and put to sale, are replaced by the word vend, and the letters patent give and grant to make, use, exercise, and vend, in the conjunctive, and prohibit to use, exercise, or put in practice, in the disjunctive. See Law and Practice, Pr. F. XIII. In a case before Lord Eldon (post, 48, n.), the question was raised, whether an article for which there was a patent in this country, if brought from abroad, as part of the private effects of a person, could be sold with such effects. Such a sale cannot, it is submitted, be considered as a violation of the exclusive privilege given by the letters patent, any more than the successive sale by different persons of an article originally purchased of the patentee, or the user of such patent article when purchased from the patentee. The meaning of the word vend was considered in a recent case (Minter v. Williams, 4 A. & E. 231, post), the question being whether to expose to sale was identical with it, so as to make such an exposure a breach of the letters patent-and they were held not to be necessarily identical. It was suggested by Coleridge, J., whether vend did not rather mean the habit of selling and offering for sale, and this suggestion is supported if we view the word as substituted for the words utter, sell, or put to sale. Conditions of Validity.-The questions which arise in considering the validity of letters patent are in respect of, 1. the grantee; 2. the term; 3. the subject-matter; 4. the incidents of the subject-matter. 1. The grantee must be the introducer of the invention within the realm. 2. The term must be for some limited period, such as may be sufficient for the instruction of others. 3. The subject-matter must be such as in the result leads to a new trade or manufacture. 4. The subject-matter must also possess the incidents of novelty and utility. Collateral and connected with the incident of utility is the condition that the grant be not prejudicial; which must be judged of by the consequences, according to the circumstances of the case. The smalt, iron, and glass patents (post) show very distinctly the nature of these conditions, the manner in which they were to be complied with, and the consequences of a failure. The first snialt patent was granted to three, for a term of 21 years, in consideration of their having undertaken to make smalt within England, as good and cheap as that theretofore imported. This grant having become prejudicial, was vacated, and two successive grants made to one of the original grantees, under certain conditions and covenants, to supply the kingdom as well as it was before supplied by importation. The incident of novelty was in this case satisfied by the introduction and establishment, within the country, of a manufacture of an article previously made only abroad. Smalt was well known, and in constant use within the kingdom, but its manufacture was unknown, or at least not practised therein. The grantees were, therefore, the introducers of a new trade into the realm. In the case of the iron patent, the grantee appears on the face of the patent to have been the inventor or discoverer of the mode of manufacture, as well as the introducer of a new trade, namely, the manufacture of iron with pit coal. Post 16, n. The grantee of the glass patent was one of the original introducers of the new manufacture of glass with sea or pit coal; and it is recited, that the invention was brought to perfection at his sole expense. These early patents exhibit distinctly the application to grants of this nature of the well-known principles of the common law, that false suggestion and failure of consideration render a grant absolutely void, in whatever manner, or to whatever extent, such suggestion may be false, or the consideration may fail. The utility of the invention is distinctly recognised in all of them, as part of the motive or consideration; but this condition would appear to differ from the others, in admitting of degrees. If an invention be totally useless, the purposes and object of the grant would fail, and such grant would consequently be void, not only on the ground of false suggestion and failure of consideration, but also on the ground of its being prejudicial, as having a tendency to stop improvement. It is important to observe, that the smalt and glass patents recite the previous grants: this would appear to be in pursuance of the statute, 6 H. 8, c. 15, which provides that the previous grant, and its determination, should be recited in any subsequent grant of the same thing. It should also be observed, that the grantee of the 2d and 3d smalt patents, was one of the grantees of the 1st. The Statute of Monopolies, 21 Jac. 1, c. 3.-The preceding conditions for the validity of letters patent at common law, are materially affected by the statute of monopolies. The grantee must be the true and first inventor, and not the introducer only; the term is limited to 14 years, and the incident of novelty is defined by the words, "which others at the time of the grant shall not use." So that the subsequent grants in the case of the smalt and glass patents, would probably have been void under the words of the statute; the other grantees having used the invention. The other conditions of validity would appear to remain precisely as at common law. The statute has received a construction which leaves the grantee of letters patent for an invention introduced from abroad in the same position, in this respect, as before the statute; since it has been held, that the introducer into this country of an invention known only in foreign parts, may be the grantee of letters patent, and a large number of patents are now granted for communications from abroad. See Edgebury v. Stephens, post 35. The legislature also has repeatedly recognised the same principle, and granted exclusive privileges and rewards for inventions so introduced, on the ground of the benefit thence accruing to the kingdom. The earliest patents set forth as a principle, the reasonableness of granting such privileges, as a recompence and reward to the authors of useful inventions; and the same principle has been adopted by the legislature, and the Judicial Committee of the Privy Council, in cases of applications for the extension of the terms of such privileges, when the question generally is, as to the amount of the reward already received. Origin of the Specification.-The most important change made since the earliest times and the statute of monopolies, is the insertion of the clause into the letters patent, requiring the party particularly to describe and ascertain the nature of his invention, and in what manner the same was to be performed. The earliest patent into which this clause appears to have been introduced, was one granted 1st April, 11th Anne: its introduction was not on the authority of parliament, but on that of the law officer of the crown. A fundamental principle of these grants is the instruction of the public; and Sir E. Coke was of opinion, that the term of 14 years was too long, since those who served privileged persons, as apprentices, to learn the inventions, must continue apprentices or servants to the end of the term. In an act of 1651, c. 2 (post), granting exclusive privileges to one Buck for 14 years, it is enacted, that Buck and his assigns shall take apprentices after the first 7 years of the term, and teach them the knowledge and mystery of the new invention. The object of that provision, the instruction of the public, is now answered by the enrolment of a specification. But it must be remembered that, though at com. mon law no such instrument was required to be enrolled, it was, nevertheless, an essential requisite that the party should be in possession of a mode of putting his invention into practice; for otherwise the patent would be void for false suggestion and failure of consideration. See post 16, n. Amendment and Extension Acts, 5 & 6 W. 4, c. 83; 2 & 3 Vict., c. 67.-At common law there was no power of amendment, except in the case of mere clerical errors. This was productive of great hardship to inventors, since it followed from the principle of avoiding a patent on the ground of false suggestion, that a most immaterial matter might render the letters patent for a most important invention altogether void. This state of things has been altered by an act introduced by Lord Brougham, under the provisions of which the letters patent and specification, which is considered as part of the letters patent, may be amended, provided no extension of the exclusive right be thereby conferred. The same act also provides for another case of great hardship, namely, where the patentee, who is a bona fide independent inventor, turns out not to be the true and first inventor of something claimed, by reason of its having been used or published before the date of his patent. The power of extending the term of letters patent, previously exercised only by the legislature, is by the same act delegated to the Judicial Committee of the Privy Council. THE SMALT PATENTS*. Letters Patent, 17th July, 3 Jac. I. to William Twynyhoe, con before made in as that im ported, and in tities; reasonable rates James, &c., King of England, Scotland, France, and Ire- Letters Patent. land, Defender of the Faith, &c., to all to whom these presents shall come, greeting. Whereas our trusty and well-beloved sub- Recitals. jects William Twynyhoe, Abraham Baker, and John Artegh,ration of gentlemen, have undertaken, by their own proper labour and in- Baker and others having dustry, and at their own great charges and expenses, to make, work undertaken to and compound, within this our realm of England, a certain blue make smalt, stuff called smalt, commonly used by painters and limners, which was never which hath not at any time heretofore been made, wrought or England, compounded, within our said realm of England, or any other our dominions, and which shall be as good, perfect, and mer- and as good chantable, as the same or like stuff called smalt made, wrought and compounded in the parts beyond the seas, and brought sufficient quaninto this realm, are or usually have been, and in such quantity and proportion as shall be sufficient for the use and employment of our loving subjects, and as hath been yearly, from time to time, brought into this realm from the parts beyond the seas; and further to utter and sell the same at such reasonable rates and to sell the and prices as hath been usually paid for the like stuff, brought same at such into this realm from the parts beyond the seas, for the most as have been part of seven years now last past; whereby not only great paid therefor during the last profit and commodity is very likely to ensue to many our loving seven subjects, but also divers of our poor people, for their relief and whereby great profit will comfort, shall be continually set on work and employed in and accrue to many, about the making, working and compounding of the said blue and divers obtain employstuff; and fit it is that they, the said William Twynyhoe, Abra- ment. ham Baker, and John Artegh, should receive some convenient And that it is recompense and reward, as well for their great labour, charges fit that they and expenses, in attaining to the skill and art of making, working warded for their and compounding of the said blue stuff, as for the common good, labour, &c. which by their good endeavours shall thereby ensue to the whole realm: Know ye therefore, that we, greatly tendering and affect- Granting part. ing the public and general good and profit of all our loving subjects, and intending to advance the said William Twynyhoe, Abraham Baker, and John Artegh, with some convenient profit and benefit, according to their just merit, of our especial grace, certain knowledge, and mere motion, have given and granted, and by these presents, for us, our heirs and successors, do give Grant to them for 21 years and grant, full, free and lawful power, license and authority to make the unto the said William Twynyhoe, Abraham Baker, and John smalt, The three following cases are printed from copies of the patent rolls at the Rolls' Chapel, with no alteration but in the spelling. Some few C seven years; should be re inaccuracies appear in them, but what is intended or omitted will readily suggest itself. Artegh, and every of them, their and every of their executors, administrators and assigns, that they and every of them, their and every of their executors, administrators and assigns, by themselves or any of them, or by their or any of their deputies, factors, assigns or servants, and none other, shall or may at all times, and from time to time, during the term of one-and-twenty years, next and immediately coming after the date hereof, in all and every county, city, town corporate, and other towns, villages, hamlets, and other places, exempt as not exempt, make, work and compound the said stuff called smalt; and the same so made, wrought and compounded, as aforesaid, by themselves or any of them, their or any of their executors, administrators or assigns, or any of them, or their or any of their deputies, factors and servants, and every of them, during the term aforesaid, to utter, sell and put to sale the said stuff called smalt, or any part thereof, to any painters, limners, or other persons whatsoever, within this our realm, or any part thereof, being subjects to us, our heirs and successors, within this realm, or any the dominions thereof, and living under the obedience of us, our heirs and successors, at convenient and reasonable prices and rates; and that the said painters, limners, and other the persons aforesaid, which so shall buy the same stuff called smalt, shall and may lawfully use, occupy and employ the same within this buying the same our realm, or any the dominions thereof, in and about painting, limning, or other work or matter whatsoever, any law, statute, act of parliament, proclamation, restraint, or any other matter, cause or thing whatsoever, to the contrary notwithstanding. * (a) and to utter and sell the same. That persons may use it. Proviso, that if grant shall on declaration thereof, under privy or great seal, or by six of the privy council, including the * * * * Provided always (b) nevertheless, that if at any time hereafter be prejudicial, it shall appear unto us, our heirs and successors, that this our present grant shall be any ways prejudicial to our commonwealth or otherwise, that we, our heirs or successors, shall conceive the same to be used to the prejudice of us, our heirs or successors, or to the subjects of us, our heirs or successors, or any of them, that then, and immediately after that declaration thereof by writing en- shall be made, by us, our heirs or successors, under the privy rolled, the grant seal or great seal of us, our heirs or successors, or by any six or more of the privy council of us, our heirs or successors, whereof the Lord Treasurer of England for the time being to be one, in writing to be enrolled in our Court of Chan Lord Treasurer, shall be void. (a) The following is an abstract of the other clauses-Power to the grantees, and all other persons, to import saffer, or any other stuff, necessary for making the smalt; Habendum for 21 years, yielding 201. per annum; all other persons prohibited during the term from making the same; offenders to be subject to fine and imprisonment; the importation of all smalt from any the parts beyond the seas during the said term prohibited; power, with a constable, to enter any shop or place to search for all smalt imported, uttered, sold or put to sale, contrary to the true meaning of said letters patent; all mayors ordered to assist in every way for the full enjoyment of the right thereby granted. (b) This proviso, in pursuance of which the letters patent were repealed (post 11), is preserved in nearly the same words in the letters patent of the present day. See Law and Practice, Pr. F. XIII. n. i. cery, signifying the same, these our letters patent, and every thing therein contained, shall from thenceforth cease, and be utterly made void and frustrate, any thing before in these presents contained to the contrary notwithstanding. In witness whereof, &c. Letters Patent, 4 Feb. 6 Jac. I. to Abraham Baker. letters patent. dom as well as After reciting the preceding letters patent, recited as follows: And whereas, since the making of the said letters patent, we have conceived that the same our grant hath been used to our prejudice: Know ye, therefore, that we, according to the tenor and effect of the said proviso before mentioned, and according to the power given unto us in and by the same, being fully purposed and resolved to determine and make void and frustrate the said letters patent, of our certain knowledge and mere motion do hereby, under our great seal of England, declare, signify, and Determination publish our will and pleasure, that the said mentioned letters of above recited patent, and every grant, article, clause, and charge therein contained, shall from henceforth cease and be utterly void and frustrate, and that the same, nor any part thereof, shall any longer be put in execution: And whereas the said Abraham Baker hath already, at his own costs, charges, and expenses, for some years past, made good quantity of the said smalt within this realm; and hath also promised and undertaken from time Promise to supto time, during the term hereafter mentioned, to make sufficient ply the kingquantity of the said smalt to serve for the use of this our king- before. dom, and to serve the same with smalt as good and as cheap as the like brought from beyond the scas, within the space of seven years next before the date of the said former letters patent, was usually sold for; Know ye now, that, as well as in consideration thereof, as also in consideration of the yearly rent and sums of money, hereby in these presents reserved, and hereafter to be paid to us, our heirs and successors, for our customs and subsidies herein demised and otherwise; and also, to the end that the said Abraham Baker may have and receive convenient re- The patent a compense and reward, in consideration of the great labour, recompense, recharges, and expenses, in attaining the said art, mystery and encouragement skill of making and compounding the said stuff, called smalt, to others. and for the better encouragement of him the said Abraham Baker, as of others, in the like endeavours; of our especial grace, certain knowledge, and mere motion, we have given, granted, and confirmed, and by these presents for us, our heirs and successors, do give, grant and confirm full, free, lawful and absolute power, license and authority, unto the said Abraham Baker, that he and his executors, administrators, deputies, factors, assigns and servants, and every or any of them, and ward, and for |