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AND

NOTES OF CASES

ON

LETTERS PATENT FOR INVENTIONS.

By THOMAS WEBSTER, Esq.

BARRISTER-AT-LAW.

London:

THOMAS BLENKARN, LAW BOOKSELLER,

(LATE CROFTS & BLENKARN.)

19, CHANOERY LANE:
A. MILLIKEN, DUBLIN; AND THOMAS CLARK, EDINBURGH.

1844.

LIPPERY OF THE
(4:1997. JR., UNIVERYTY

9.56411 JUL 23 1901

LONDON : PRINTED BY A SWEETING, BARTLETT'S BUILDINGS, HOLBORK.

PREFACE.

THESE reports and notes of cases on letters patent for inventions are intended to comprise the authorities from which the principles and practice of this branch of the law are derived, and to which recourse must be had in determining the various questions which arise in connexion with those subjects.

Such questions have reference to the general principles of the law, to the practical application of those principles to the subject of inventions, and to matters of practice in soliciting letters patent, or in the extension, protection, and enjoyment, of the rights and property thereby created.

These general principles are derived from that part of the old common law which controlled and directed the prerogative of the crown in its grants of exclusive privileges. The exercise of that prerogative in granting lands, offices, and other things of a similar nature, was well understood and defined, but the peculiar nature of the subject, no less than the manner in which the rights and privileges so created were to be enjoyed, occasioned great difficulties in the application of the principles of the old common law to new inventions.

It has not been unusual to refer to the saving clause of the Statute of Monopolies as the origin, and to the decided cases since that statute as the only authorities in illustration, of this branch of the law. But the statute itself, in declaring that a particular class of grants and certain letters patent, excepted from its operation, should be and remain of like force and effect as if that act had never been made, distinctly recognises the existence of an old common law, which, as modified by that statute, constitutes the present law of letters patent for inventions.

The principles of that common law are not matter of doubt or

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 con

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