and cannot be suppressed but by parliament, nor a man restrained from exercising any trade but by parliament. Charter against Also such charter, of a monopoly against the freedom of trade freedom of trade void by statute. and traffic, is against divers acts of parliament, as 9 E. 3, c. 1 and 2, which, for the advancement of freedom 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. As to the second question, it was resolved, that the dispensation, or license, to have the sole importation and merchandizing of cards, without any limitation or stint, notwithstanding the act of 3 E. 4, is utterly against law. For it is true that, forasmuch as an act of parliament which generally prohibits a thing, upon a penalty which is popular, or only given to the king, may be inconvenient to divers particular persons, in respect of person, place, time, &c., for this reason, the law has given power to the king to dispense with particular persons; but when the wisdom of the parliament has made an act to restrain, pro bono publico, the importation of many foreign manufactures, to the intent that the subjects of the realm might apply themselves to the making of the said manufactures, &c., and thereby maintain themselves and their family with the labour of their hands; now for a private gain to grant the sole importation of them to one or divers, without any limitation, notwithstanding the said act, is a monopoly against the common law, and against the end and scope of the act itself; for this is not to maintain and increase the labours of the poor card makers within the realm, at whose petition the act was made, but merely to take away and destroy their trade and labours, and that without any reason of necessity or inconvenience, in respect of person, place, or time; and the more so, because it was granted in reversion for years, as hath been said; but only the benefit of a private man, his executors and administrators, for his particular commodity, and in prejudice of the commonwealth. And EdPechey's Case. ward the 3d, by his letters patent, granted to one John Pechey the sole importation of sweet wine into London; and at a parliament held 50 E. 3, this grant was adjudged void. Also, admitting that such grant or dispensation was good, yet the plaintiff cannot maintain an action on the case against those who import any foreign cards, but the remedy which the act of 3 E. 4. in such case gives ought to be pursued And judgment was given and entered, quod querens nihil caperet per billam. The above abridgement of the case of monopolies from Coke's reports, presents the principal points of argument which were raised in that important case, and the old common law of the realm in respect of this kind of monopolies. The exclusive privileges or monopolies to which the preceding case especially refers, are of a very different kind from those which are the subject of the following pages; and in tracing down the law of letters patent for inventions from the old sources, it is of great importance to point out distinctly the consideration, suggestion, or motive of the grant, as expressed on the face of the letters patent, since this will in general be sufficient to decide their validity or invalidity at common law. In the preceding case, the consideration or motive is the restraining people in one known occupation, in order that they might employ themselves in another (ante, 1); and this was to be effected by giving the exclusive privilege of manufacture and sale to certain persons. Such a grant is declared to be a monopoly, and against the common law. The principles of the above decision have been recognised in many subsequent cases of grants or restraints connected with some known manufacture or trade. In the early glass patent (12 Jac. 1, post 17) the consideration was the diminishing the consumption of wood in the manufacture of glass, by granting an exclusive privilege of making glass from wood. This and other grants of the same nature having become hurtful, were in the subsequent glass patent (21 Jac. 1) declared to be thereby void in law; and they were also declared grievances by the committee of the House of Commons (post 26). This was obviously a restraint on a known trade, and some of the tests stated above (p. 3.) as incidents of a monopoly are applicable to this case; for the article appears to have become deteriorated in quality and increased in price, and such must in general be the result of all grants of this nature. See also the smalt patents (post 11). As to involuntary restraints on trade, see Mitchell v. Reynolds. 1 P. Williams, 183. Definition of Monopoly. It is important to ascertain the sense in which the term monopoly is used, because it must not be inferred from the preceding case that all monopolies, in the sense in which the term is usually understood, are against law. Sir E. Coke's definition of a monopoly (3 Inst. 181, c. 85) would appear to include such monopolies only as are on the authority of the preced ing case, against the common law and the commonwealth. "A monopoly is 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 any thing, whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty that they had before, or hindered in their lawful trade. " For the word monopoly dicitur ἀπὸ τοῦ μόνου, i.e. solo, zal wλsoμas vendere, quod est cum unus solus aliquod genus mercaturæ in universum emit, ut solus vendat pretium ad suum libitum statuens.” The latter part of the preceding applied also to the cases of ingrossing, which is the act of the subject between party and party, whereas monopoly is by a patent from the king (2 Hawk. P. C. 293). The former part of the definition of the term is less comprehensive than the original derivation of the word, as subsequently expressed, warrants, and seems framed as expressing the general result of the preceding case, without reference to the simple meaning of the term, namely, exclusive sale, or to those cases in which exclusive sale may be granted as incident to certain other exclusive privileges of making, working, and using. It should also be mentioned, that any other patents than those of exclusive sale, and relating to some known trade, were so rare that they all came to be considered of this nature, and the terms' patent of monopoly' and 'patent of privilege' came into use; the latter being applied to a grant of something besides mere sale, as a grant of privilege for a new invention. Thus Bircot's patent (post 31, n. p.) is called by Sir E. Coke a privilege concerning lead ore, and the same distinction may be traced in the debates in the House of Commons on the bill of monopolies. Post 27. The following extract from the report in Noy of the preceding case serves at the same time to point out the true meaning of the term, and as a report of some early cases of legitimate grants. DARCY V. Allin. "That this is a monopoly patent appeareth by the description Monopoly or definition set forth by Mr. Solicitor, which is thus ; it is a explained. monopoly, cum penes vestrúm potestas vendendi sit. But when there be many sellers, although they be all free of one company, as goldsmiths, clothiers, merchants, drapers, tailors, shoemakers, tanners, and such like, who have settled governments, and wardens and governors, to keep them in order, they were never accounted a monopoly; which the statute of 5 El. in some sort proveth, because in many of these trades all persons are prohibited to use the same, but only such as have served in the same trade seven years as an apprentice. But if they, or any other like society, should conspire together to enhance the prices of their wares or of their labours, it is a thing punishable by the What monopoly patent lawful. Hastings' patent. Matthey's patent. common laws, presentable in every court, and to be censured severely in the star chamber. But in this patent the sole and whole traffic for the making, buying, and selling of cards throughout the realm, is given to Mr. Darcy and his assigns only, for 21 years; which is a plain monopoly patent. "Now therefore I will show you how the judges have heretofore allowed of monopoly patents; which is, that 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, that in such cases the king may grant to him a monopoly patent, for some reasonable time, until the subjects may learn the same, in consideration of the good that he doth bring by his invention to the commonwealth, otherwise not. "In the 9th Eliz. there was a patent granted to Mr. Hastings of the court: that in consideration that he brought in the skill of making frisadoes, as they were made in Harlem and Amsterdam, beyond the seas, being not used in England, that therefore he should have the sole trade of the making and selling thereof for divers years, charging all other subjects not to make any frisadoes in England during that time, by pain to forfeit the same frisadoes by them made, and to forfeit also 1007., the one moiety thereof to the Queen's Majesty, the other to Mr. Hastings. Upon which patent Mr. Hastings, about 20 years past, exhibited an information in the Exchequer against certain clothiers of Coxsall, for making of frisadoes, contrary to the intent of this patent. To which information, for that it was against law to have such penalties of the goods and 100l. to be forfeited by force of a letter patent; therefore they did demur upon the information, and moved the court; and the opinion of the court being clear against him, he never went further in his information, but exhibited his English bill in the Exchequer chamber against them; where, upon the examination of the cause, it appeared that the same clothiers did make baies very like to Mr. Hastings' frisadoes, and that they used to make them before Mr. Hastings' patent; for which cause they were neither punished, nor restrained from making their baies like to his frisadoes. "Another monopoly patent was granted to Mr. Matthey, a cutler at Fleetbridge, in the beginning of this queen's time, which I have here in court to show; by which patent it was granted unto him the sole making of knives with bone hafts and plates of lattin, because, as the patent suggested, he brought the first use thereof from beyond seas. Yet nevertheless, when the wardens of the company of cutlers did show before some of the council and some learned in the law, that they did use to make knives before, though not with such hafts, that such a 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 person 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. I 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 smalt 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 common 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. |