in the people. It limited the royal prerogative to certain definite channels and specified the boundaries within which at the time of the making of such letters-patent and grants did not use, so they be not contrary to the law, nor mischievous to the state, by raising of the price of commodities at home, or hurt of trade, or generally inconvenient, but that the same shall be of such force as they were, or should be, if this act had not been made and of none other. And if the same were made for more than one and twenty years, that then the same, for the term of one and twenty years only, to be accounted from the date of the first letters-patent and grants thereof made, shall be of such force as they were, or should have been, if the same had been made but for the term of one and twenty years only, and as if this act had never been had or made, and of none other." VI. "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 letterspatent and grant, shall not use, so as also they be not contrary to the law, nor mischievous to the state, by raising 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." grant heretofore made or confirmed by act of parliament. VIII. Provided, that this act shall not affect any warrant directed to any justice of the king's courts. IX. Provided, that this act shall not prejudice any cities, boroughs, or incorporated towns, in the right to any customs heretofore used by them; or any company or corporation or fellowship of any trade, or society of merchants, in any of their immunities or privileges. X. Provided, that this act shall not affect any patent heretofore made, or hereafter to be made, concerning printing, or the making of saltpetre or of gunpowder, or of ordnance or shot for ordnance, nor any grant of any office. XI. Provided, that this act shall not affect any privilege heretofore granted, or hereafter to be granted, concerning the making of alum or the working of alum mines. XII. Provided, that this act shall not prejudice any usage or privilege heretofore claimed and enjoyed by the guild of hoast-men of Newcastle-uponTyne, concerning the carrying or trading in coal; nor any grant of any licenses to taverners and retail dealers in wine to be drank on their own premises, where the fees for such licenses accrue directly to the use of the king. XIII. Provided, that this act shall not affect the patent granted in A. D. 1623 to Sir Robert Mansel for the making of glass; or the patent granted in A. D. 1615 to James Maxwell for the transportation of calves' skins. XIV. Provided, that this act shall not interfere with the patent granted in A. D. 1618 to Abraham Baker for the making of smalt; nor that granted in A. D. 1621 to Edward, Lord Dudley, for VII. Provided, that this act shall not extend to or interfere with any The grant of a monopoly it might lawfully be exercised. still remained a voluntary concession on the part of the sovereign, to be bestowed by him according to his pleasure and on such terms as he might deem appropriate.2 It became subject to judicial criticism only upon the questions whether the monopolist himself had complied with the conditions of the grant and was entitled, under the provisions of the statute, to receive it. If he were the true and first inventor of any manner of new manufacture within the realm, which others at the date of his grant did not use, and which was neither contrary to law nor hurtful to the state; if his monopoly, as granted, consisted only in the exclusive privilege of making or using such invention for the proper period of time; and if he had fulfilled the duties imposed on him by the crown, his grant was valid, but otherwise was void. The decisions of the courts upon these provisions of the statute constitute the body of the present English Patent Law; while in the same statute, thus interpreted, are found the sources of the Patent Law of the United States.8 melting iron ore and making the same the Federal Constitution. Our patent into bars with coal. 2 Godson, 47; Attorney-General, ex rel. Hecker v. Rumford Chemical Works (1876), 9 O. G. 1062. acts have always depended upon common-law principles for their construction, and until recently have been uniformly treated as a part of that great body of theoretical and practical jurisprudence. Patent law is as truly, though not so extensively, a matter of historical development as the law of real property, and can no more be beneficially administered as a mere statutory system, inoperative except where verbally declared, than any other of those ancient branches of the law which we have inherited from our Anglo-Saxon ancestors. See Appendix to 3 Wheat. note 2: Briefs of counsel in United States v. American Bell Telephone Co. (1887), 32 Fed. Rep. 591. 3 The disposition to regard the rights and remedies of inventors as resting entirely upon the Constitution and the Acts of Congress, which is apparent in the narrow construction given to the statutes in some recent cases, and is specifically expressed in United States v. American Bell Telephone Co. (1887), 41 O. G. 123, is thus evidently improper. These rights and remedies were recognized by the common law before the Stat. Jac. I. was enacted. They were acknowledged and enforced by the individual states before the adoption of § 10 CHAPTER II. OF THE NATURE OF THE MONOPOLY SECURED TO AN INVENTOR BY LETTERS-PATENT. § 11. Patent Privilege a Monopoly: Diversity of Opinions. Certain modern writers upon Patent Law have asserted that the exclusive privilege conferred on an inventor is not a monopoly. Certain judges of the courts of the United States, in their decisions upon patent cases, have expressed the same opinion. Other authors and jurists have declared § 11. 1 To this effect is Curtis on Patents, Prelim. Obs. xix.: "A patent for a useful invention is not under our law, or the law of England, a grant of a monopoly, in the sense of the old common law." Also, xxii., "A patent right, under the modern law of England and America, differs essentially from one of the old English Monopolies. In those grants of the crown, the subject-matter of the exclusive privilege was quite as often a commodity of which the public were and long had been in possession, as it was anything invented, discovered, or even imported by the patentee." There is no uniformity in the language used in reference to this matter by the American courts. Thus, for example, in Brooks v. Jenkins (1844), 3 McLean, 437, the judge remarks: "This law gives a monopoly, but not in an odious sense. It takes nothing from the community at large, but secures to them the greatest benefits." In Parker v. Haworth (1848), 4 McLean, 372; 2 Robb. 725, the same court declares: "It is not a monopoly the inventor receives. Instead of taking anything from the public, he confers on it the greatest benefits." In Bloomer v. Stolly (1850), 5 McLean, 162, he states: "It is said monopolies are odious; but a patent right that shall compensate the inventor is not a monopoly in the general sense of that term. The inventor takes nothing from society." And in Allen v. Hunter (1855), 6 McLean, 305, he says: "Patentees are not monopolists. This objection is often made and it has its effect upon society. The imputation is unjust and impolitic. A monopolist is one who by the exercise of the sover eign power takes from the public that which belongs to it and gives to the grantee and his assigns an exclusive use. On this ground monopolies are justly odious. It enables a favored individual to tax the community for his exclusive benefit, for the use of that to which every other person in the community, abstractly, has an equal right with himself. Under the patent law this can never be done. No exclusive right can be granted for anything which the patentee has not invented or discovered. If he claims anything which was before that the exclusive right of the inventor is not only a true monopoly, but, as is apparent from the historical sketch already given, that it is the primeval and ideal monopoly, out of the abuse of which all odious and illegal monopolies have grown.2 The latter is the view taken of the subject by the earlier writers, and is the doctrine generally adhered to by the British courts.3 known his patent is void. So that the law repudiates a monopoly. The right of the patentee entirely rests on his invention or discovery of that which is useful and which was not known before. And the law gives him the exclusive use of the thing invented or discovered for a few years as a compensation for his ingenuity, labor, and expense in producing it. This, then, in no sense partakes of the character of a monopoly." Thus within a period of eleven years the same court declares of a patent privilege that it "is a monopoly but not in an odious sense;" that "it is not a monopoly," and that 'it is not a monopoly in the general sense of that term." 66 2 Stat. James I., § 1: "Be it declared and enacted, by authority of this present parliament; That all Monopolies, and all Commissions, Grants, Licences, Charters, and Letters Patent, heretofore made or granted, or hereafter to be made or granted, to any person or persons, bodies politic or corporate whatsoever, of or for the sole buying, selling, making, working, or using of anything within this realm, or the dominion of Wales, or of any other Monopolies," &c. Out of these the 6th section excepts the privileges granted to first inventors, thereby showing that the patent privilege was then regarded as one form of monopoly. Says Coryton: (5) "The earliest form of these privileges was that of conducting exclusively new trades, or dealing exclusively in objects of commerce hitherto unknown, as a reward and encourage ment to the parties introducing them. 2 VOL. I. By degrees, however, the powers confided to the executive were perverted from their proper purpose; and under the pretence of the better government of trade, the prerogative of the crown was employed in sanctioning, in return for pecuniary aid, individuals and corporations in very oppressive monopolies." 8 To this effect is Godson: (43) "One species of monopolies, it has been shown, are those, which, although founded on grants, are allowed by statute law. From that source the Law of Patents for Inventions springs. . . . For although they are monopolies, yet they are very limited ones." So also Phillips: (2) "A patent is a grant by the state of the exclusive priv. ilege of making, using, and vending, and authorizing others to make, use, and vend an invention. It is a monopoly of the invention. The monopoly may be unrestricted in geographical extent, and so be coextensive with the authority of the state or government granting it, or may be confined to a certain territory; so in respect to duration, it may be for an indefinite or a limited period; and again in its nature or character it may be either absolute, or subject to certain qualifications and conditions. . . (23) Patent rights are a surviving branch of the great system of monopolies," &c. In Coryton (2) "The exclusive use of new inventions, although the origin and the supporting principle of the whole, plays but an insignificant part in the great system of monopolies," &c. Other writers applying the same term § 12. Patent Privilege a Monopoly: Effect of this Doctrine on Legislatures and Courts. The question whether a patent privilege is a monopoly is not a mere question of words. It is the point of departure for to the patent privilege are Norman, 2; the time of the monopoly." 1 Abb. P. 1 Web. 5, n. C. 437 (442). The language of the English courts from the earliest period has been of the same character. Thus, in Darcy v. Allin (1602), Noy, 173: (182) "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," &c. In Liardet v. Johnson (1778), 1 Web. 53, Lord Mansfield says: (54, note e) "The law relative to patents requires, as a price the individual should pay the people for his monopoly," &c. Bull. N. P. 76. In Rex v. Arkwright (1785), 1 Web. 64, Buller, J. (66) "It is clearly settled at law that a man, to entitle himself to the benefit of a patent for a monopoly, must disclose his secret," &c. 1 Abb. P. C. 29 (31). In Turner v. Winter (1787), 1 Web. 77, Ashhurst, J.: (80) “As every patent is calculated to give a monopoly to the patentee, it is so far against the principles of law," &c. 1 Abb. P. C. 43(47). In Huddart v. Grimshaw (1803), 1 Web. 85, Lord Ellenborough: (86) "A patent entitling the plaintiff, for a limited period of time, to the monopoly of an invention," &c. 1 Abb. P. C. 128 (145). In Crossley v. Beverly (1830), 1 Web. 112, Lord Tenterden (116) "That would have been less beneficial to the public, because it would have prolonged In Morgan v. Seaward (1836), 1 Web. 170, Alderson, B.: (173) "That is the fair premium which the patentee pays for the monopoly he receives." Parke, B.: (194) "If the inventor could sell his invention, keeping the secret to himself, and when it was likely to be discovered by another, take out a patent, he might have, practically, a monopoly for a much longer period than fourteen years. . . . (197) A grant of a monopoly for an invention which is altogether useless," &c. 2 Abb. P. C., 262 (319), 419 (428, 431). In Crane v. Price (1842), 1 Web. 393, Tindal, C. J.: (411) "The king may grant him a monopoly of a patent for a reasonable time." In Walton v. Bateman (1842), 1 Web. 613, Cresswell, J., speaking of the statute of James I., says it was passed (614) "to enact that all parties should be disabled from using monopolies, except in certain instances." In Househill Co. v. Neilson (1843), 1 Web. 673, Lord Brougham : (712) “The patent act contains two exceptions — the proviso under which the monopoly is allowed to be granted. . . . In cases of inventions, the patent right, or monopoly, may be granted," &c. ... |