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uncertainty. The case of monopolies, argued and determined in the Exchequer Chamber, in the time of Elizabeth, exhibits the common law of the realm in respect of monopolies generally: the early letters patent, particularly those specially excepted from the operation of the Statute of Monopolies, show the suggestions and considerations upon which the crown then acted in making those grants, and the manner in which the privileges so granted were to be enjoyed. The Reports from the Committee of Grievances, as recorded in the Journals of the House of Commons, show, not only the manner in which the prerogative was abused, and the necessity which existed for the interference of the legislature, but explain the introduction of several of the special clauses contained in the latest of the excepted patents, and which was granted while the bill of monopolies was under the consideration of the legislature—particularly the clauses permitting the importation of glass from the realm of Scotland, or foreign parts beyond the sea, and saving any objection to the grant on account of the size of the furnaces or the kind of glass not being described-clauses which would appear to have been introduced to obviate objections raised by the committee.
These early letters patent, when viewed in connexion with each other, and with the history of the times, distinctly exhibit the manner in which the prerogative of the crown could by law be exercised, before the passing of the Statute of Monopolies. They show that in many cases the grantee, or some at least of the grantees, had no share as an author of the invention, but that any claim which could be made rested simply on having contributed to its introduction—that some (in the words of the report of the case of Monopolies) by their wit and invention, others by their charge and industry, had so contributed. It appears from the Journals of the House of Commons, that the most absurd constructions had been put on the word 'invention;' and from both the above sources, that patents were granted for twenty-one years, or longer periods.
The Statute of Monopolies enacted that the grantee must be the true and first inventor; that the subject-matter must be some manner of manufacture; that the term must not be for a longer period than fourteen years; changing and declaring the common law in these respects only, but leaving its principles and practice in other respects as they were before.
The only change introduced by the statute in the principles of the law was in respect of the grantee; but the old common law has been restored in a great measure by the construction
which has been put upon the statute, which is held in this respect not to apply to inventions, the knowledge of which is derived from abroad; so that, he who introduces an invention into this country from abroad is the true and first inventor within the meaning of the statute, and may still be the grantee of letters patent for such invention.
But whether the grantee be the true and first inventor in the literal sense of the terms, or in the constructive sense, as the introducer of an invention from abroad, it must always be remembered that the principle upon which he rests his title is the introduction of the invention; and though public policy may require the restriction imposed by the statute, the old common law of the realm, and the uniform tenour of the acts of parliament for confirming or extending patent rights, show the introduction of the invention to be the real consideration upon which these exclusive privileges are founded.
The acts of Parliament for conferring on individuals rights and privileges of the same nature as those granted by letters patent, constitute a class of authorities to which little attention has hitherto been directed. These appear to be valuable, not only in illustration of the principle just adverted to, but on account of the variety of special clauses which they contain for ensuring to the party, and to the public, under the peculiar circumstances of each case, their mutual and respective rights.
The letters patent, prior to the Statute of Monopolies, set forth in great detail the reasons for the grant, or the grounds and conditions upon which it was made; thus the general principles of the common law as to avoiding grants from the crown, viz. false suggestion and failure of consideration, of which the latter in general involves the former, would, when necessary, take effect. These principles are in no respect affected by the Statute of Monopolies; and if the grantee be not the true and first inventor, or if the invention be not new within the meaning of the words of the statute, or not useful, or disadvantageous instead of beneficial to the public, the grant, having been made on suggestions that are false, and considerations that have failed, may be avoided.
The early letters patent, it will be observed, contain no provision for ensuring to the public the knowledge of the invention, and, consequently, if the grantee kept his secret, he might, in fact, enjoy his monopoly for a much longer period than the term of the letters patent. The inconvenience of this state of things seems to have been felt, since an act of the Commonwealth contains a proviso, that the inventor should take apprentices during the last seven years of the term, and teach them the knowledge and mystery of the invention. Further, it was unjust to the public to confer powers excluding them from participating in an invention without minutely defining and explaining what the invention was. These and other inconveniences were effectually obviated by a proviso introduced into all letters patent since the end of Anne's reign, requiring the grantee particularly to describe and ascertain the nature of his invention, and in what manner the same is to be performed. This proviso, which gave rise to the specification, not only imports two conditions, the noncompliance with either of which will be ground for avoiding the letters patent; but if both be properly complied with, effect is given to the conditions of validity at common law, and under the statute, since the invention really claimed being known, it may be further ascertained whether it is new and useful, and whether the grantee is the true and first inventor.
The specification may fail to satisfy the proviso in either of the two following respects: first, it may not particularly describe and ascertain the nature of the invention; that is, what is intended to be claimed may be left in uncertainty; or, secondly, it may not describe and ascertain in what manner the invention is to be performed, with sufficient particularity to enable persons properly qualified, to practise the invention. In an advanced state of the arts and manufactures, inventors are peculiarly liable to fall into both these errors; the changes marking the progress of invention at such periods, will generally be small, but the requisites of the proviso will, nevertheless, frequently not be complied with, unless a comprehensive view of the whole manufacture be given and many parts or processes described, in respect of which no claim is intended to be made; but if such explanatory matter be not disclaimed, or if the claim be not confined to the change, however minute, which is the essence of the invention, the nature thereof will not be ascertained with the requisite certainty. Again, inasmuch as ordinary and wellknown processes or parts need not be described, an inventor, or a person well acquainted with the subject, is apt to presume too much on the knowledge of others, and so fail in the second respect to satisfy the proviso.
A review of the cases will show that whatever the form of the objection to a patent, the real defect has generally been in the specification, since it has very rarely happened that an invention has not, in fact, existed, in respect of which, if properly described and claimed, a patent might not have been sustained.
The specifications in the following pages, present instances of both the defects just alluded to; and the practical operation of Lord Brougham's act, whereby some defects may be amended, shows the truth of the preceding statement as to their character, for, in a great many cases since that statute, in which the patentee has failed in the first instance on a trial at law, he has, nevertheless, succeeded in amending the specification, so as to secure the enjoyment of the substantial part of his invention.
The particular subject matter or object of the application of these general principles is defined and pointed out by the statute. It is not for every invention that letters patent can be granted, other means of protection being provided for some, as for instance, for designs for articles of manufacture; but the inventions must satisfy the words “any manner of new manufactures” as defined and explained by the subsequent cases. And in determining what species of invention is within the intent and meaning of the statute, it will not be necessary to rely on those patents only which have occupied the attention of the courts of law, but regard should also be had to those which have been confirmed or extended by special acts of parliament, or on the recommendation of the Judicial Committee of the Privy Council, and to those also which have benefitted the trade of the country, which have been acquiesced in by the public, or have been enjoyed by the grantees without effective resistance throughout their whole term, and in respect of which considerable sums of money have been paid by licensees.
The specifications contained in the following pages will afford the means, not only of ascertaining the subject-matter of those letters patent which have occupied the attention of the courts of law, of the legislature, and of the committee of the privy council, but will show to inventors the nature and requisites of those instruments upon which, as experience shows, the validity of their patent will most frequently depend.
It would be foreign to the present occasion to dwell in any detail on the mixed questions of fact and of law which occur in the application of the preceding principles, or on those which relate to the granting of letters patent-to the remedies for infringement—to the pleadings, and notice of objections under the statute—to amendment by disclaimer and memorandum of alteration, to the confirmation of existing, or the granting of new letters patent, on the recommendation of the judicial com
mittee of the Privy Council—to, the forms and effect of deeds of license, the assignment of shares in a patent, and the partnerships to which they give rise; the cases on these and other subjects may be readily referred to by means of the index; the practical proceedings connected with these matters, together with the requisite and usual forms and instruments, will be found under their proper titles in my work on the Law and Practice of Letters Patent for Inventions.
The increased protection now afforded to patentees in the enjoyment of their exclusive privileges, has given additional security and value to property in patents, and the consequence is, that questions of a novel nature, or to which attention has hitherto been but little directed, are occurring—for instance, as to the authority of letters patent in many of the colonies and possessions abroad, as to the import of the words within this realm' in the statute of monopolies, and as to the validity of letters patent for England, Scotland, Ireland, the colonies, plantations and possessions abroad, in respect of inventions known and in use at the time of the grant in some place to which the authority of the crown extends—the determination of which interesting and curious questions must depend on the principles to be derived from the general tenour of authorities, and on considerations of public policy.
The earlier cases and statutes are arranged in the following pages in chronological order, and this arrangement will be found materially to elucidate the origin and progress of the law of patents when in its infancy and until the close of the last and the commencement of the present century, since which period the principles applicable to that subject have been well defined. With respect to the more recent cases contained in the following pages, the same plan of arrangement could not be pursued; the various proceedings on each patent follow immediately after the specification in the order in which they actually occurred.
The recent statute has given rise to proceedings of great importance to the public as well as to inventors, for the confirmation and prolongation of patent rights; and the following pages contain a report of all the cases on those subjects which have been heard before the Judicial Committee of the Privy Council.
T.W. April, 1844.