THE LAW

OF

PATENTS FOR INVENTIONS.

CHAPTER I.

PRELIMINARY.

THAT the Crown has the power in certain cases of granting to inventors the privilege of a monopoly in working their inventions for a certain number of years is probably known to every reader before he opens this volume. During that period the entire community is precluded from making use of the invention, except by the permission of the inventor or the person who has duly succeeded to his rights; the law declaring that the privileged person shall derive the exclusive benefit, whatever that may be, of the invention for the specified time.

This privilege was formerly secured to the inventor by letters patent passed under the Great Seal. It is now secured to him by a patent obtained at the Patent Office, and the person to whom the privilege is granted is termed in common parlance the patentee.

For the purposes of the present treatise, there is no need that we should enter upon any historical disquisition as to the common-law right of the Crown in matters of patent privileges. It will be sufficient to state that the right of the Crown to grant privileges by letters patent to subjects obtaining its favour was exercised in very early times, and it was only disputed when exclusive rights to sell various

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commodities, such as salt, iron, and coal, had been granted to certain persons, to the great grievance of their fellowsubjects, and to the oppression of trade. The Statute of Monopolies, passed in the twenty-first year of James I., was levelled at the abuses which an undue exercise of prerogative had produced, and being, says Sir Edward Coke, forcibly and vehemently penned for their suppression, cut off all claim on the part of the Crown to the right of granting monopolies and exclusive privileges, whereby the subjects of the realm could be aggrieved and inconvenienced.1

That statute (see the Appendix) declared that all monopolies, grants, and letters patent, for the sole buying, selling, making, working, or using of anything within the realm, were contrary to the laws, and void. But it excepted from the operation of this enactment all letters patent and grants of privilege of the sole working or making of any manner of new manufactures to the true and first inventor of such manufacture, which others at the time of making such letters patent

The King had undoubtedly, by the ancient laws of the realm, large powers for the regulation of trade; but the ablest judges would have found it difficult to say what was the precise extent of those powers. . . . In addition to his undoubted right to grant special commercial privileges to particular places, he long claimed a right to grant special commercial privileges to particular societies and to particular individuals; and our ancestors, as usual, did not think it worth their while to dispute this claim till it produced serious inconvenience. At length, in the reign of Queen Elizabeth, the power of creating monopolies began to be grossly abused; and as soon as it began to be grossly abused, it began to be questioned. The Queen wisely declined a conflict with the House of Commons backed by the whole nation. She frankly acknowledged that there was reason for complaint; she cancelled the patents which had excited the public clamours; and her people, delighted by this concession, and by the gracious manner in which it had been made, did not require from her an express renunciation of the disputed prerogative. The discontents which her wisdom had appeased were revived by the dishonest and pusillanimous policy of her successor, called Kingcraft. He readily granted oppressive patents of monopoly. When he needed the help of his Parliament, he as readily annulled them; and as soon as the Parliament had ceased to sit, his Great Seal was put to instruments more odious than those he had recently cancelled. At length that excellent House of Commons which met in 1623 determined to apply a strong remedy to the evil. The King was forced to give his assent to a law which declared monopolies established by royal authority to be null and void.' (Macaulay's 'History of England,' iv. 127.)

and grants should not use, so they be not contrary to law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient. It was afterwards declared that these excepted grants of privilege should have the same validity that they had previous to the passing of the statute, but no other. It is to be observed' (said Lord Justice James in the case of Von Heyden v. Neustadt, 50 L. J. N. s. Ch. 126) that the statute of James gives no right to the inventor. The statute is a statute for the abolishing and forbidding monopolies, and the sixth section, under which the Crown acts in these matters, is a mere proviso excepting from the operation of that Act certain patents or grants of privileges, which are to be "of such force as they should be if that Act had never been made, and of none other." And it is from the ancient power and prerogative of the Crown so saved and preserved that every patentee derives his monopoly. What the Crown could lawfully do, and has lawfully done, after that statute, is shown by the uniform tenor of the letters patent which have been since issued, by the advice and authority of every law officer and every holder of the Great Seal for upwards of two centuries and a half. The power of the Crown to grant letters patent of such tenor has never been brought in question.'

When the validity of a monopoly comes into question, the first point to consider is, whether it is rendered void by the statute; and secondly, if it should not be thereby avoided, whether it is a privilege permitted by the common law.

In this treatise, however, we restrict ourselves to a consideration of Patents for inventions. It is not every kind of discovery that can be protected by a patent. The statute of James I. requires a patentable invention to be referable to some manner of manufacture, as these words have been interpreted by the courts of law.

Nor is it every one who may succeed in obtaining the grant of a patent for an invention that is able to sustain it