LAW OF PATENTS. CHAPTER I. The Nature of Letters Patent for an Invention. 1. A MONOPOLY is defined to be an institution or allowance by the king, by his grant, commission, or otherwise, to any person or persons, bodies politic or corporate, of or for the sole buying, selling, making, working, or using of anything whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty that they had before, or are hindered in their lawful trade. (a) 2. Statute 21 Jac. 1, cap. 3, sect. 1-6, declared grants of monopolies to be contrary to law, and enacted, that all monopolies for the sole buying, selling, working, or using of anything should be void and of none effect, except "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 manufactures within this realm to the true and first inventor or inventors of such manufactures, which others at the time of making such letters patent and inventions shall not use; so that they be not contrary to law or mischievous to trade, by raising the price of commodities at home, or hurt of trade, or generally inconvenient." (b) 3. Monopolies are said to be against the policy of the law (a) 3 Inst. 181. (b) See Appendix. and contrary to Magna Charta. (c) It is said, that "all trades, as well mechanical as otherwise, which prevent idleness, and exercise men and youth in labour for the maintenance of themselves and their families, and for the increase of their substance, to serve the queen when occasion shall require, are profitable to the commonwealth, and therefore any grant to have the sole right to exercise a trade is against the common law, and the benefit and liberty of the subject. Such a restriction is not only injurious to those who exercise the same trade, but to all other subjects, because from want of competition the price of the commodity is kept high, and it is produced of inferior quality." (d) The evils of monopolies were very strongly felt at the time of the passing of the statute.(e) 4. Independently of an express restriction by the sovereign authority in a state, there is no such thing as exclusive property in an invention. The subject-matters of human inquiry are free to all men. An addition once made to the stock of knowledge is common property for ever; nor is it less the property of the discoverer because others possess it as well as himself. It is in its nature infinite and incapable of appropriation. The first builder of a house could claim as his own the substantial and tangible materials, the logs and wood of which he constructed it; but the idea of such an erection became instantly the property of all mankind. The abstract natural right of the inventor is only to exercise his own invention freely. In the case of the monopoly of an invention, it is the idea and principle of the invention that is appropriated, and not the mere formal expression of it, as in case of copyright. 5. At common law, all restraints of trade, where nothing more appears, are bad; but if the circumstances show that the restraint is upon fair consideration, it ought to be main (c) See 2 Inst. pp. 47, 61; Mitchel v. Reynolds, 1 P. Williams, 181; Rot. Parl. 50 Ed. 3, Nu. 17, 28, 33; stat. 50 Ed. 3, cap. 2; stat. 9 Ed. 3, cap. 1; 2 R. 2, cap. 1; Davenant v. Hurdis, 2 Inst. 47; EastIndia Company v. Sandys, 10 How. Stat. Trials, 371; 3 Inst. 181. (d) The case of monopolies, 11 Rep. 84; S. C. nom. Darcy v. Allin, Noy, 178. (e) See Hansard, Feb. 19, 18 Jac. 1, Mompesson's case, 2 State Trials, 111; 1143. 1192, 1200, 1205; Sir G. Sir H. Yelverton's case, ib. tained. (f) The statute of James enacts, that the grant shall be of such force as it would have been before the statute, The invention must therefore be useful and of none other. as well as new. (g) 6. An exclusive privilege can only be justifiable as a reward to him who adds to the general stock of knowledge, and a purchase of his invention. It is therefore a condition of such a grant that the grantee shall fully disclose his invention. The practice of specifying seems first hinted at in Darcy v. Allen, as reported in Noy. It is said, that monopolies are lawful when any man, by his own charge or industry, or wit and invention, doth bring any new trade into the realm, or any engine tending to the furtherance of a trade that never was used before, and that, for the good of the realm, in such cases the king may grant to him a monopoly for some reasonable time, until the subjects may learn the same, in consideration of the good he does the commonwealth. (h) An Act of 1651, granting a patent for fourteen years, to one Buck, for melting iron by coal, contained a proviso, that Buck should take apprentices after seven years of the term, and teach them the knowledge of his new invention. 7. This object is now attained by the condition requiring the enrolment of a specification. The earliest patent into which this clause appears to have been introduced, was one granted the 1st of April, 11th Anne. Its introduction was not on the authority of Parliament, but on that of the law officers of the Crown. (i) 8. The king cannot grant or take but by matter of record. (k) No grant of the king is available or pleadable except it be under the great seal. (7) 9. At common law, the letters patent must have been enrolled, otherwise they were void. They could not have been vacated except by matter of record; thus, it is said, that if a man surrender his patent, and it be cancelled, and a Mitchel v. Reynolds, 1 P. Williams, 181. (g) 3 Inst. 184. Darcy v. Allin, Noy, Rep. 178. Webst. P. C. 8. (k) Com. Dig. Patent, A. Viner's Ab. Prerogative, M. b. 7; Lane's case, 2 Rep. 16 b. (1) Com. Dig. Patent, C. 2 Viner's Abridgment, Prerogative, C. b. note of it indorsed, and afterwards the surrender enrolled, the patent shall be vacated. After the vacatur is entered on the roll, a constat of the patent shall not be granted. But a surrender and cancelling with an indorsement on it is not sufficient if the surrender be not enrolled. (m) If a deed be delivered to be enrolled, it is sufficient, though it be not enrolled, but put into a chest, for it may be enrolled at any time.(n) 10. Letters patent granted under the provisions of stat. 15 & 16 Vict. c. 83, will not require enrolment. (0) 11. If a patent be granted in respect of a new invention, the king cannot grant a second patent, for the charter is granted as an encouragement to invention and industry, and to secure the patentee in the profits for a reasonable time; but when that is expired, the public is to have the benefit of the discovery. If a second patent is granted to a stranger, the first patentee shall have a scire facias to repeal the second patent. (p) · 12. The construction of the patent is for the Court. It appears that the construction of the granting part of the patent must depend on different principles from that by which the construction of the specification is to be governed. It is laid down that the king's letters patent are records of a high nature; they have in all times been construed most favourably for the king, contrary to the grants of common persons, which are construed in favour of the grantee, and most strongly against the grantor. If they can be taken to enure to a double intent, they shall be taken to the intent that makes most to the king's benefit.(q) 13. The grant shall be construed strictly. But where it is capable of two constructions, by the one of which it will be valid, and by the other void, that construction shall be put on it which will make it valid, for that will be more for the benefit of the subject and the honour of the king, which ought (m) Com. Dig. Patent, G. Dyer, 167, 195 a. (n) Com. Dig. Patent, E. Viner's Abridgment, Prerogative, A. d. Abraham v. Wilcocks. (0) Stat. 15 & 16 Vict. c. 83, s. 27. (p) Bacon's Abridgment, Prerogative, F. 4, citing Lucas, 131. (7) Bacon's Abridgment, Prerogative, F. pt. 2, Com, Dig. 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