THE LAW AND PRACTICE

RELATING TO

LETTERS PATENT FOR INVENTIONS.

CHAPTER I.

LETTERS PATENT.

LETTERS patent for inventions are granted by the Crown by virtue of its common law prerogative. Letters patent are franchises, being a branch of the royal prerogative vested in the hands of a subject. In Reg. v. County Court Judge of Halifax (a), Baron Pollock, in giving the judgment of the Court, said: "It was contended on behalf of the defendant that 'franchise' includes the right or privilege which is granted by a patent for a new invention. The primary meaning of the word 'franchise,' as its origin denotes, is a freedom; but it has been used in the language of the law in a wider sense as including a liberty or privilege. In Termes de la Ley, tit. 'Franchise,' the only meaning given to it is an immunity or exemption from ordinary jurisdiction.' The various rights, however, which it aptly describes are dwelt upon at great length in the Digests of Viner and Comyn, and in Bacon's Abridgement; and in Blackstone's Commentaries, Vol. II. p. 7, it is said: 'Franchise and liberty are used as synonymous terms, and their definition is, a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject. Being, therefore, derived from the Crown, they must arise from the king's grant; or in some cases may be held by prescription, which, as has been frequently said, presupposes a grant. The kinds of them are various and almost

(a) L. R., 1891, 1 Q. B. 793, 797; rmed by C. A., L. R., 1891, 2 Q. B. 263.

T.

B

infinite.' In Chitty's Prerogative of the Crown, p. 119, a franchise is defined to be a royal privilege, or branch of the royal prerogative, subsisting in the hands of a subject by a grant from the king; and for this he refers to Finch's Law, p. 164. In Comyn's Digest, tit. Prerogative,' D. 30, it is said: The king may grant to another to have any franchise or liberty as privileges of trade; and under the head of Trade' (B), instances are given of grants by the king's patent for the sole printing of certain books. In Darcy v. Allen (b), the Court said, in dealing with the first question-viz., whether the said grant to the plaintiff of the sole making of cards within the realm was good or not'Also such charter of a monopoly, against the freedom of trade and traffic, is against divers Acts of Parliament, as 9 Edw. III. cc. 1 & 2, which for the advancement of trade and traffic extends to all things vendible, notwithstanding any charter of franchise granted to the contrary, or usage or custom, or judgment given upon such charters, which charters are adjudged by the same Parliament to be of no force or effect.' These words are inapplicable to the first question,' unless the Court intended to assume that the grant of the sole making of cards within the realm was a 'charter of franchise'; and, although the charter of franchise mentioned in the statute cited apparently referred to charters which had been granted to corporations or towns, it seems to be a fair inference that the Court considered such charter of a monopoly as a charter of franchise; and that this would be none the less true when the monopoly answered to the description which the Court declared to be lawful, i.e., 'where any man by his own charge and industry, or by his own wit or 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.' The result of these authorities is, in our opinion, that franchise' does include such a right as was put in issue by the proceedings in the county court."

By the creation of monopolies to first and true inventors in the right of using their inventions, a species of property is created in favour of inventors, as a reward for the benefits which they have conferred on humanity, by the exercise of their thought, know(b) 11 Rep. 84.

ledge, and industry. It is to the interests of the community that persons should be induced to devote their time, energies and resources in furtherance of the development of arts and manufactures, and this was recognised in England from the earliest periods which can pretend to be described as civilized.

It was to the advantage of the whole community that inventors should be rewarded, and no measure of reward can be conceived more just or equitable, and bearing a closer relation to the benefit conferred by the particular inventor than to grant him the sole right of making, using and vending his invention for a limited period of time.

In the corrupt ages of the Stuarts, it is not to be wondered at, that the prerogative of the crown to grant monopoly rights to first and true inventors, should have been made a lever for assuming a prerogative to grant monopoly rights in trade generally. In the reign of James the First, to such an extent had this abuse been carried, that it was deemed advisable by the legislature that the rights of the crown in respect of letters patent should be declared by legislative enactment-this was the origin of the Statute of Monopolies.

It has been supposed that the prerogative of the crown to grant letters patent for inventions was created by this statute, but the most cursory perusal of its enactments and of the authorities which preceded it, shows clearly that, so far from the statute giving to the crown any right which it did not possess before it was passed, it has as its intention the limiting the right of the crown, and the declaring that, which had always been the common law upon the subject. In the first section of this Act, for instance, we find it recited "that all grants of monopolies and of the benefit of any penal laws, or of power to dispense with the law, or to compound for the forfeiture, are contrary to your Majesty's laws, which your Majesty's declaration is truly consonant and agreeable to the ancient and fundamental laws of this your realm. That all monopolies, and all commissions, grants, licenses, charters, and letters patent heretofore made or granted or hereafter to be made or granted . . . . are altogether contrary to the laws of this realm, and so are and shall be utterly void and of none effect, and in no-wise to be put in use or execution.”

Section 6 saved the granting of letters patent to inventors in the following words:

"Provided also, and be it declared and enacted, that any declaration before mentioned shall not extend to any letters patent and grants of privilege for the term of fourteen years or under, hereafter to be made of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patent and grants shall not use, so as also they be not contrary to the law, nor mischievous to the State by raising of prices of commodities at home, or hurt of trade, or generally inconvenient; the said fourteen years to be accounted from the date of the first letters patent or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be if this Act had never been made and of none other."

It will thus be seen that the Statute of Monopolies creates no statutory rights, but merely saves the common law rights of the crown; and by section 116 of the Patents Designs and Trade Marks Act, 1883, it is enacted, "Nothing in this Act shall take away, abridge or prejudicially affect the prerogative of the crown in relation to the granting of any letters patent, or to the withholding of the grant thereof." By section 46 of the same Act the word "invention" is defined as meaning " any manner of new manufacture the subject of letters patent and grant of privilege within section 6 of the Statute of Monopolies and includes an alleged

invention."

So it is that in the present day, notwithstanding the various statutes which have been passed in relation to letters patent for inventions, these monopolies are still granted upon the mere motion of the sovereign, in the exercise of her royal prerogative, and that all that has been done, has been declaratory of the limits within which that prerogative should be exercised, and of the method of procedure to be adopted in obtaining letters patent for inventions.

For the purpose of supporting the validity of the letters patent it is necessary that the patentee should conform to certain requisites, and these requisites are indicated in the 6th section of