Читать книгу Intellectual Property Law for Engineers, Scientists, and Entrepreneurs - Howard B. Rockman - Страница 51

The transition from a patent custom to a patent system came about in Great Britain through the recognition of patents as a form of property right to be granted to inventors, rather than merely a privilege. As was typical in Venice, Great Britain had a long history of royal grants prior to the first formal statute establishing patents.

As an island nation, the importation of skills from abroad was encouraged by the British in an effort to compete with the progress of other European countries. In the fourteenth century, the arts of weaving, ship making, glass making, and iron making were stimulated in England by special grants to foreign artisans. During the reign of Queen Elizabeth I, which began in the year 1558, the first elements of a modern patent system appeared. Patents for a dredging machine, and for the making of soap, alum, and saltpeter, were granted. However, in England as well as in other countries, there was abuse of the royal prerogative in granting patents, and public opinion in opposition was reflected in complaints to the House of Commons, and in the ultimate enactment of legislation to halt the practice of royal patent grants. In the year 1602, the case of Darcy v. Allin, 11 Coke 846 (King’s Bench 1602), came before the court of England, called the “King’s Bench,” challenging the right of the Crown to grant monopolies to items, in this case, playing cards, which the citizens of London claimed a free right to trade in. Apparently, in this case, it was decided that the monopoly was not valid.

In another case before the English courts in 1614 which involved the weaving art, entitled The Cloth Workers of Ipswich, Godbolt, tit. 351, p. 252, 254 (1614), it was held that the king could not create a monopoly that would take away free trade, which is the birthright of every subject. However, the court held that, if one brings a new invention or a new trade into the kingdom, or has made “a new discovery, in such cases, the king, of his grace and favor, may grant by charter that only he the inventor shall use such a trade or traffic for a certain time, because at first the people of the kingdom are ignorant and do not have the knowledge or use of the new invention or trade.” The court went on to hold that, when the patent right is expired, the king cannot make a new grant, for when the trade has become common and others have bound apprentices to the same trade, there is no reason that such use should be forbidden.

About 10 years after the Cloth Workers decision, the English Statute of Monopolies was passed in 1623 during the reign of James I. This law invalidated the prior grants of patent rights given by the Crown, and declared that “any patent granted shall be maintained for a fourteen‐year period or under, if the patents were directed to new manufactures within the realm, to the true and first inventor and inventors of such manufactures, which others, at the time of making such Letters Patent and grant, shall not use so as also they be not contrary to the law.” The key point of this statute was that the granting of an exclusive right by way of Letters Patent was taken away as a prerogative of the Crown, and given as an inherent right to any inventor, and at that time, one who brought new inventions into the realm, as a right that could not be deprived by the Crown. This subtle but important difference is embodied in all of the patent laws of the world today. Note also that the Statue of Monopolies, as did the early Venetian statute, referred to “new” manufactures within the realm, setting up the universally accepted requirement of novelty as a prerequisite to the grant of patent protection.

Although the patent custom originated in other European countries prior to adoption in Britain, the patent custom began to flourish in Britain during the reign of Elizabeth I. But it was not until the Statute of Monopolies was enacted in 1623 that the custom was given a statutory foothold in England. This law arose from a particular exemption to the general ban on monopolies, and Letters Patent were granted for a limited term of 14 years. This statutory language, together with the few common law judicial opinions that interpreted patent law in England, provided the legal basis for the English patent law that existed in 1787 when the American Constitution was being drafted.

However, there was a virtual dearth of reported common law cases in England relating to patents. For example, during the seventeenth century, there were only three reported common law cases on patents, and two of those had occurred prior to 1623. By the time of the American Constitution, there was considerable uncertainty in England as to the nature of what the patent law was because of the lack of court decisions interpreting the statutory provision. That uncertainty was compounded in the United States.

The framers of the U.S. Constitution also based their provision regarding patents and copyrights on the patent custom that was practiced during the colonial period, and later by the states right after the Revolutionary War.

The early English patent custom arose out of a desire to create new industry in the realm, primarily by importation and only secondarily by what would now be termed invention by entrepreneurs. As a consequence, novelty, which is the sine qua non for patentability throughout the world today, was predicated on whether the subject matter of the grant was presently being worked in England. It mattered not whether the art or manufacture was known and practiced elsewhere or even whether it had previously been practiced or worked in England. Originality was only peripherally involved, and the inventive subject matter was considered new if it had not been worked in England within recent memory. The seminal belief was that the Statute of Monopolies of 1623 did not change this.