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Act not to extend to letters patent granted
XIII. Provided also, and be it enacted, that this act, or any s declaration, provision, penalty, forfeiture, or other thing before
mentioned, shall not extend or be prejudicial to a grant or priglass.
vilege, for or concerning the making of glass, by his Majesty's letters patent under the great seal of England, bearing date the two-and-twentieth day of May, in the one-and-twentieth year of his Majesty's reign of England, made and granted to Sir Robert Mansell (9), Knight, vice-admiral of England: nor to a grant or letters patent, bearing date the twelfth of June, in the thirteenth year of his Majesty's reign of England, made to James Maxewell, Esquire, concerning the transportation of calves' skins: but that the said several letters patent, last mentioned, shall be and remain of the like force and effect, and as free from the declarations, provisions, penalties, and forfeitures before. mentioned, as if this act had never been had nor made, and not
otherwise. Nor to those
XIV. Provided also, and be it declared and enacted, that this granted to
ale act, or any declaration, provision, penalty, forfeiture, or other or Dudley for thing before-mentioned, shall not extend or be prejudicial to a iron.
grant or privilege for or concerning the making of smalt, by his Majesty's letters patent, under the great seal of England, bearing date the sixteenth day of February, in the sixteenth year of his Majesty's reign of England, made or granted to Abraham Baker(r); nor to a grant or privilege for or concerning the melting of iron ewer, and of making the same into cast-works or bars with sea coals or pit coals, by his Majesty's letters patent, under the great seal of England, bearing date the twentieth day of February, in the nineteenth year of his Majesty's reign of
still during the residue of the privilege, by means whereof such numbers of men would not apply themselves thereunto, as should be requisite for the commonwealth, after the privilege ended. And this was the true cause wherefore, both for the time passed and for the time to come, they were left of such force as they were before the making of this act."
The above observation of Sir E. Coke, or rather the doctrine founded upon it, that a patent for an addition would not be good, has been declared, in many cases, to be incorrect. See per Lord Loughborough, in Arkwright v. Nightingale, post, and per Buller, J., and Grose, J., in Boulton 8 Watt v. Bull, 2 H. B1.
In the absence of all information respecting Bircot's invention, it may be questioned, if neces. sary, whether the words ' substantially and essentially newly invented,' do not show the real mean. ing of Sir Ed. Coke, and lead to the presumption that the privilege granted included the whole manufacture, old as well as new. It must also be remembered, at how low an ebb were the arts and manufactures of the country at that time; as the instance of a general inconvenience from the invention of the fulling mill shows. As to the real consequences of such inventions, see Baines On the Cotton Manufacture, 361.
(9) These letters patent are not within the 5th section. The grantee, Mansell, was not the true and first inventor of the manufacture which was the subject of the grant, viz. the making of glass with coal instead of wood; the letters patent themselves showing, ante 18, that Percivall was the true and first inventor; also, that the manufacture was not new at the time of the grant, others having practised the invention before. But for this exception, the term of the letters patent would have been reduced to twenty-one years, which, as Mansell probably had interest had court, would have endangered the passing of the bill. See ante 27, and Journal of Commons. The committee of grievances do not appear to have come to any decision on these letters patent, but those recited as repealed were declared a grievance.
(r) These letters patent are not within the 5th section. The first smalt patent, ante 9, shows that other persons were associated with Baker in the introduction of the invention; nor was the manufacture new within the realm at the time of the grant of the excepted patent. On these grounds, therefore, the letters patent would have been void unless specially excepted.
England, made or granted to Edward, Lord Dudley (r); but that the same several letters patent and grants shall be and remain of the like force and effect, and as free from the declarations, provisions, penalties, and forfeitures before mentioned, as if this act had never been had nor made, and not otherwise (s).
5 & 6 W. 4, c. 83.
5 & 6 W.4,
. c. 83. An act to amend the law touching Letters Patent for Inventions (t). 2 & 3 Vict. c. 67.
2&3 Vict.c.67. An act to amend an act of the fifth and sixth years of the reign of King William the Fourth, intituled “ An act to amend the law touching Letters Patent for Inventions” (u),
ACTS OF CHARLES I. A.D. 1641. SCOTLAND.
Act discharging Monopolies. Our sovereign Lord and estates of Parliament, considering Scotch act of the great hurt and prejudice sustained by sundry his Majesty's Monopolies. lieges by the monopolies used and exacted within this kingdom, and which have been conferred to the use of any particular person or persons, to the great hurt and prejudice of others his Majesty's lieges, and especially the gifts for selling tobacco, granted to Sir Samuel Leslie and Thomas Dalmahoy; the patent of the leather, granted to the Earl of Mar; the patent of the pearling, granted to –– Bannatyne; the patent of pearl, granted to Robert Buchan ; the patent of armoury, granted to Henry Mauld; therefore our said sovereign lord and estates of parliament, by the tenor hereof, annul, rescind, and simply discharge, the gifts aforesaid, granted to the persons above men- .
(r) These letters patent, for all that appears on the face of them, are within the fifth section, and would, consequently, have been preserved to the grantee without this special exception. But, independently of the importance to the patentee of such an exception as a sort of judgment of parliament in favour of a grant, at a time when, from the abuse of the royal prerogative, all patents were looked upon with the greatest suspicion, and as grievances, it is very doubtful wbether this patent would have been saved under that section, since it appears that Dud Dudley, the son of the grantee, was the true and first inventor. See his Metallum Martis, or iron made with pit coal, sea coal, &c. Lond. 1665, and ante 16.
(1) The conclusion of this and the preceding section, when taken in connexion with the pream ble of the act, suggests the two following consider ations: first, that there were certain grants which,
though partaking in some measure of the character of monopolies, were not really grants of monopolies within the meaning of the use of that term in the preamble; and, secondly, that the conditions of validity under the statute and at common law are different. At common law the introducer as well as the inventor could be the grantee, and the term was frequently more than fourteen years ; whereas, by the statute, the true and first inventor alone can be the grantee. See ante 8.
(t) This act, commonly called Lord Brougham's Act, does not affect the subject-matter of letters patent, as defined by the statute of monopolies, but relates to matters of practice of the greatest importance to inventors. See Law & Practice, tit. Statutes.
(u) This act, like the preceding, relates merely to matters of practice. See Law & Practice, tit. Statutes.
tioned, and all that may follow or has followed thereupon, and ordains the same, and all other patents of that nature, purchased or to be purchased for the benefit of particular persons, in prejudice of the public, to cease and be ineffectual in all times coming.
The preceding act is merely declaratory of the law in respect of certain grants of monopolies, which, on the ground of public policy, were clearly illegal. The granting of exclusive privi. leges to the authors of new inventions, derives its origin in Scotland, as in this country, from the old common law of the realm, the crown having exercised its prerogative from time immemorial as to grants of this nature, in the same manner and upon the same conditions and same authority in both countries. The same abuses seem also to have prevailed, and the similarity between the above enactment and the statute of monopolies, ante 29, is very striking. The above, together with all other acts passed by the Scotch parlia. ment during the troubles of Charles the First, was, in effect, repealed by the general recissory act, 1661, c. 15; and, in McAndrews v. The Soli. citors of Edinburgh (11 S. D. and B. 812). Lord Glenlee says, “ the act of 1641 is no part of the statute law, though no doubt, in common sense, an objection exists to the granting of monopolies." The above act is, however, frequently referred to as exhibiting the Scotch law of patents,
and as declaratory of the old common law of that realm.
Term of Scotch Patents.-It appears from the register of the great seal, the record of such grants for Scotland, that the term of the grants varied from 13 to 21 years. A patent was granted, 23d April, 1614, by James VI. to Sir George Bruce, for a new invention in the manufacture of iron, for thirteen years, and one in 1616 to James Shevis, for a machine to raise water from coal pits, for twenty-one years; and one 220 November, 1660, to John Brown, for a similar term, for a mode not before practised in Scotland, of refining sugar.
Since the passing of the English Statute of Monopolies, the term of fourteen years has been adopted as the term of the Scotch patents, and they now, in pursuance of the 24th article of the treaty of Union, pass under the seal appointed to be kept and used in Scotland, in all things relating to private rights or grants which usually passed under the great seal of Scotland, and which only concerned offices, grants, commissions, and private rights, within that kingdom.
3 W. & M. William and Mary, by, &c.: Whereas Kendrick Edisbury hath by his humble petition represented unto us, that with great charges and much time spent, he hath invented and found out a new art or invention of certain rollers to be used under the bodies of carriages, carts and waggons, instead of wheels, which will be far more useful than wheels, by amending and preserv
ing as well the highways as private grounds, which said invenInvention new tion was never used in England before, and prayed us to grant in England.
him our letters patent for the sole use thereof, for the term of fourteen years: Know ye, therefore, that we, being willing to cherish and encourage all laudable endeavours and designs of such our subjects as have by their industry found out useful and profitable arts, mysteries, and inventions, and that the said Kendrick Edisbury may accordingly reap some fruit and benefit of his labour and charge, in and concerning the premises, of our especial grace, certain knowledge, and mere motion, have given and granted, and by these presents, &c. (a)
(a) These letters patent being prior to the clause requiring the enrolment of a specification,
no account of the manner in which the invention was to be carried into effect exists; so that they confer on the grantee the exclusive use of rollers under carriages, instead of wheels, in whatever manner the rollers are applied.
EDGEBURY (h) v. STEPHENS. A grant of a monopoly may be to the first inventor, by the The introducer 21 Jac. 1, and if the invention be new in England, a patent may of an invention
into the realm is be granted though the thing was practised beyond sea before; for the inventor the statute speaks of new manufactures within this realm ; so within the sta
tute of James. that if it be new here, it is within the statute; for the act intended to encourage new devices useful to the kingdom, and whether learned by travel or by study it is the same thing. Agreed by Holt and Pollexfen, in the case of Edgebury v. Stephens (i).
PRIVATE ACTS FOR PATENTS.
A.D. 1651, c. 2.
Coals without Charking (6). Whereas Jeremy Buck, of Minchinhampton, in the county New invention of Gloucester, Esq., by a new invention, doth undertake to formelt
W &c. by coal, melt or cause to be melted down iron, lead, tin, copper, brass, without charkand other metals, with stone coal, pit coal, or sea coal, without ing it. charking thereof: Be it therefore enacted by this present parliament and by the authority thereof, that the said Jeremy Buck, his executors, administrators and assigns, and such as he, or they, or any of them, by writing under his, their, or any of their hands and seals, shall from time to time appoint (and none other), shall and may use, exercise and enjoy the art, skill and mystery of melting down iron ore and cinders into raw iron, and of other ore and metal, with stone coal, pit coal, or sea coal, without To use the said charking thereof, and the sole and only benefit of his new inven- invention for
fourteen years. tion aforesaid, for and during the term of fourteen years from the
The substitution of rollers for wheels might have been a useful invention at the time, regard being had to the greater difficulty of making wheels, and to the state of the roads at that period. The patent, as it would appear from the following case, was supported.
(b) There is no patent on the rolls about this time of this name, but the is as written is extremely like g, and I have no doubt that the following case relates to the preceding grant.
(i) The decision in this case that the importer or introducer of an invention, not used before within the realm, is the true and first inventor within the meaning of the Statute of Monopolics,
is in accordance with the old common law; and it has been the uniform practice to the present time to grant letters patent for such inventions, and the legislature have repeatedly recognised the principle by granting rewards and exclusive privileges to such authors or introducers. See post 37, n. and Lombe's Patent, and the recitals in various acts, post 38-40, and notes.
(a) This invention, as the act shows, related to the manufacture of iron, which had been the subject of so many early patents, ante 16. The act contains no account of the manner in which the invention was to be performed, but the proposed plan is said to have failed entirely.
(b) See Scobell's collections of Acts and Or. dinances, during the Commonwealth.
feit lol, as a penalty.
first day of March, in the year of our Lord God, 1650; and that no person or persons, bodies politic or corporate, whatsoever, shall make use of the said new invention within the commonwealth of England, or any the dominions thereof, during the said
time of fourteen years (c). Methods now in Provided always, and it is hereby declared and enacted, that use not prohibited.
all and every person and persons may use such ways and works for melting down any iron ore, cinder, or other metals, as they now use or have heretofore lawfully used to do, or any other way or works hereafter by them newly to be invented, so as they make not use of the said new invention of him the said
Jeremy Buck (d). Offenders to for. And it is further enacted, by the authority aforesaid, that
every person offending against this act for every day wherein such offence shall be committed, shall forfeit and lose to the said Jeremy Buck, his executors, administrators and assigns, respectively, the sum of 101. in the name of a pain or penalty to be recovered by the said Jeremy Buck, his executors, administrators and assigns, by action of debt to be grounded upon this act, in any court of record within this commonwealth, where any action of debt now doth or shall hereafter be tryable, together with damages for non-payment thereof, and costs of suit ; in which action of debt, or for the staying whereof, no essoyn, wager of law, protection or injunction, or any other means of
delay, shall or may be granted, admitted, or allowed. The inventor to Provided also, that the said Jeremy Buck, and his assigns, during the last
es after seven years of the term hereby granted, do and shall take seven years of apprentices, and teach them the knowledge and mystery of the the term.
said new invention (e).
(c) It may be observed, that this act contains a distinct announcement of the use of raw coal and cinders in the manufacture of iron. The plan failed entirely; but the application of these substances to that purpose, has been the subject of many subsequent patents, and is now in successful and constant operation.
These facts are important, in connexion with the question of how far the publication of an invention is a user in law, so as to destroy the patent of a subsequent independent inventor, who introduces what is apparently the same invention into general and successful operation.
(d) A proviso to the same or very similar effect, is inserted in many acts for extending the terms granted by letters patent. Post 38.40. Before a specification was required to be enrolled, and subsequently to the introduction of the clause into the letters patent requiring that instrument, unless the act of extension saved all objections in law, competent against such letters patent, the protection of the public required some such declaration and express reservation.
(e) This proviso is a distinct recognition of the principle, that the instruction of the public in the invention, is part of the motive or policy of the
grant. It is said (ante 6), that a patent may be granted for some reasonable time, until the subjects may learn the invention; and Sir E. Coke seems to have thought (ante 31, n. p.) that fourteen years is too long a period, since those who had served the ordinary term, namely, seven years, of apprenticehood, must continue servants or apprentices to the end of the term of the patent. It is obvious, that unless a party be compelled to teach others, by taking apprentices, or to publish the invention in some manner, he might keep the secret of his invention to himself, and the public would be in no respect benefitted. All these inconveniences are entirely obviated by a clause in the letters patent, as granted since 11 Anne, requiring the enrolment of a specification; the fundamental principle of which is, that a party shall describe his invention in the fullest and most distinct manner which the subject admits of, so that other persons may be enabled to practise it in as full and beneficial a manner as the inventor himself. The earliest patent I have met with in which the clause requiring the specification appears, is that granted 1st April, 1712, to John Nasmyth. See Law 8 Practice, Ind. tit. Specification.