The Main Body of the Introduction to John Davies's Patent Cases (1816)Reproduced below is the first section of the Introduction to John Davies, A Collection of the most Important Cases relating to Patents of Invention (1816), excluding the text of the Statute of Monopolies and the standard text of an English patent of the time which conclude the Introduction.
John Davies, A Collection of the most Important Cases relating to Patents of Invention (1816)
IntroductionRespecting Monopolies, and the History of Patents for InventionsThe system of monopoly as exercised prior to the statute of 21 J. I. cap. 3, was not only a means of rewarding favourites of the Crown, and faithful servants of the public, but had also become a source of revenue to the Crown, arising from the rents sometimes reserved by the Letters Patent granting monopolies to individuals and companies, who, by having the sole privilege of making or vending any article granted to them, were enabled to obtain great advantage to themselves, and such monopolies by their abuse had become a serious grievance to the public.
These monopolies have been at various times the ground of complaint on the part of the public; and great inconvenience having been experienced from them, Queen Elizabeth, in order to prevent an act being brought into Parliament for that purpose, called in some of the most offensive grants. But the principle of granting such exclusive privileges, although perhaps in a limited degree, still continued in use until near the end of the reign of King James the First, notwithstanding that monarch, soon after his coming to the crown, had declared himself an enemy to them. The House of Commons however, at this period, gave great attention to the subject, and after much investigation, and many complaints of this and other abuses of the Prerogative, a bill passed that house in the 19th year of this reign, for the purpose of restraining monopolies, and which bill was ordered to be carried to the Lords with a special recommendation; but it was by them rejected.
In the Parliament which met 19th Feb 21 Ja. I. the Commons, profiting by the union which for a short time seemed to subsist between the King and his new Parliament, lost no time in bringing in another bill for restraining monopolies, the former bill having been, as Hume says, “encouraged by the King, but had failed by the rupture between him and the Commons:” for although the King was stated to have recalled all Patents of Monopoly, yet the Commons were not satisfied without a declaratory law against them. But it does not appear that the King really intended to put an end to grants of this description, if the act had not passed; as many grants are recorded in this very year, and during the progress of the bill, of sole privilege for twenty-one years and other terms, not only for new inventions, but for matters which are not stated in the grants to be new inventions; some of them reserving rents to the Crown, and one in particular, extending the privilege to Scotland and Ireland; a practice not in use at the present day, as Patents of Invention for each of the three parts of the United Kingdom now pass under distinct seals.
The act was made a declaratory, rather than an enacting statute, as monopolies had at all times been considered contrary to the ancient and fundamental laws of the realm, as well as to Magna Charta; and many had, at different times previous to the passing of this act, been set aside in the courts upon those grounds. They were also found by experience to be very prejudicial to an extension of commerce.
This bill was read for a first time in the House of Commons, on the 24th Feb. and passed that house on 13th March; when it was ordered “to be carried up to the House of Lords alone, by Mr. Glanvyle well attended, with a special recommendation from the House of Commons of the good attention thereof to it.”
The fate of this bill was more fortunate than that of its precursor; as, after much consideration and dely, and several amendments by the Lords, and some conferences between them and the Commons, it passed the Upper House, and having received the Royal Assent on the 2d Nov. 1624, 22 Jac. 1. became the law of the land, upon which all subsequent patents for the sole use of inventions are grounded, and from this period our present law of patents may properly be said to commence.
It is not the object of this work to make a display of learning, by defining the word “Monopoly;” or to give an account of the different monopolies which have been practised in Greece and elsewhere, or even in England, prior to the Statute of James, or to give the opinion of Grotius, or other learned authors of antiquity upon the subject, as hath been done by the late essayist “on the Law of Patents for new Inventions.” Suffice it to say, that Sir Edward Coke, in his 3 Inst. 181, gives the following definition of a monopoly.—“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, wherby 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 trde;” which definition was certainly correct, according to practice before the passing of the statute now in force upon that subject: but a more just definition of the word, according to the present state of the law, is given by Hawkins, in his Pleas of the Crown, I. 470, where he says, “A monopoly is an allowance by the King to any person, for the sole making, selling, &c. any thing, so that no person be restrained in what he had before, or in using his lawful trade.”
The principle of the kind of monopolies under consideration, namely Patents for Inventions, is now pretty well understood; and it is generally allowed, that, though it would be infinitely mischievous to the public, if useful discoveries were to be for ever locked up and made the property of private individuals, yet it is equally useful to the public, that the first inventor of such useful discoveries should have the benefit of them for a limited time; for it is plain, that the public would have no benefit, that there could be no improvement in the manufactures of the country, unless the labour, the time, and the expense of ingenious men were applied to the purpose of new discoveries and improvements.
It is well known that the most useful discoveries that have been made in the arts and manufactures of the country have not been made by speculative and recluse philosophers in their closets; but by ingenious mechanics, practically acquainted with the subject matter of these discoveries. It therefore follows, that those persons whose only means of getting their subsistence is by the exercise of their own labour, skill, and ingenuity, must necessarily be prompted by an expectation of advantage to themselves, to spend much time and labour, and incur the expense of experiments in stepping out of the beaten track, and endeavouring to bring forward any great or essential improvement in the branch in which they are concerned. Such improvements frequently require not only ingenuity, but much thought, long attention, great labour, and repeated experiments; not only requiring labour, but attended with considerable expense. It could not therefore be expected, that the most ingenious man of this description should sacrifice their time and labour in seeking improvements which, although of great benefit to their country, would be ruinous to themselves, unless some mode was devised to secure to them an advantage from their invention.
The most fair and equitable mode for doing this seems to be that which the statute of 21 Jac. has provided, which enables the Crown to secure to the inventor of any new and useful discovery, the exclusive benefit and profit of it for a limited time. It is fair and equitable for this plain reason, because if the invention is of no use, or has no ingenuity, and produces no beneficial effect, the exclusive enjoyment of it will produce no profit to the inventor. On the contrary, it it is of great ingenuity, and a considerable improvement to manufactures, and benefit to the public, the exclusive profit for the time limited will be of consequence to the inventor; and therefore this mode of encouraging ingenuity seems calculated to produce its effect, without violating any principle of commerce or of justice; because the reward is exactly proportioned to the merit and utility of the invention: the more meritorious and beneficial to the public any discovery will be when laid open, the more beneficial it is likely to be to the inventor while he has the exclusive enjoyment of it. It takes nothing from the public of which they are in possession; while it tends greatly to promote the general interest of the community. The justice and equity of such monopolies cannot therefore surely be disputed, and still less their utility.
Many instances might be adduced to prove that, without the hope of such reward, ingenious persons would not sacrifice their time and property in bringing their ideas into practical use; but it will be sufficient to mention the very important improvements of Mr. Watt upon the steam-engine, who devoted many years, and spent a very considerable sum of money in making experiments before he could effect his object, which is not in the nature of things to suppose he would have done, if he was not to have an exclusive privilege so as to prevent the world at large from availing themselves of his skill, labour, and expense, the moment he had brought his invention to maturity. But it is unnecessary to say any thing more in defence of the restricted monopoly now in use under this statute; as, however odious in former times such monopolies were looked upon, and which, indeed, when carried to the extent they were previous to the statute, were extremely pernicious to the public weal; they are now become very advantageous to the commercial prosperity of the country, and manufacturers and others are not only not ashamed, but even proud of having their manufactures and inventions called “Patent,” and themselves styled “Patentees.”
In order that the law of patents, and the foundation of meaning of such grants may be clearly understood, and the whole law upon the subject brought into one view, it has been thought proper to give, at the end of this introductory chapter, the declaratory statute by which the law of patents of invention is now determined, and upon which alone they rest; and there might also have been added, the explication of the more material parts of it, by that great luminary of the law, Sir Edward Coke; in whose time, and with whose assistance (he having been chairman of the committee to whom the bill was referred), this act was framed and passed (and who of course must have been fully competent to explain the meaning and intent of it), as given in 3 Inst. 182; but as his comment relates mostly to the parts of the act with which we have at present nothing to do, it is omitted.
There is also added, the form of letters patent for inventions, as now in use; although, it may be observed, that the powers and provisoes contained in these patents have varied from time to time, agreeably to the suggestions of the Attorney or Solicitor General for the time being, whose duty it is to draw these instruments, and who, by the King’s warrant, is directed “to insert therein all such clauses, prohibitions, and provisoes, as are usual and necessary in grants of the like nature, and as he shall judge requisite.”
The most material alteration that has taken place in these grants, is the addition of the proviso for enrolling a specification within a given time; which was not introduced into these letters patent until near the end of Queen Anne’s reign; although we find that proviso spoken of in the arguments in some of the following cases, as a legislative measure; but no provision whatever is made in the act, for enrolling any description which should enable the public to practise the invention at the end of the monopoly granted to the patentee.
There was, indeed, a sort of specification generally contained in the patent, which must have been given in the petition praying for the exclusive privilege; but it was not such a specification as is now requisite, and which would enable the public to manufacture the article when the patent-right had expired; and there was no clause or proviso inserted in the patents that if the description given therein should be insufficient for that purpose, the patent should be void; consequently the world was entirely dependent upon the fidelity, and it may be said in many cases, the generosity of the patentee, whether the invention should become public at the end of his term or not, as it is evident that many very important inventions, without a proper and sufficient specification for the benefit of the public, might still be withheld from the world as to their public use and exercise.
Hence, no doubt, and either from the conviction and experience that fraud and concealment had been made use of by patentees, in order to keep their inventions from being brought into public use upon the expiration of their patents, or perhaps from its having been discovered that it was unsafe for the inventors to give a full description of their inventions before the patents had passed the Great Seal (as their privilege only commences at that period, and if by any means, however fraudulent, the invention should previously have been made public, the patent would be void), the law officers of the Crown found it expedient, and even necessary, both for the advantage of the public and the patentee, to introduce this proviso.
The time allowed for enrolling the specification was varied at different periods, having at first usually been four months from the day of the date of the letters patent; but when the late Lord Alvanley was Attorney General, he reduced the time to one month, under the idea, it is presumed, that the invention should be perfected without further experiments before the patent was obtained, and that one month was amply sufficient to put the specification in due form; but the time given for this purpose has lately been extended to two months, probably on account of the difficulty of drawing such a specification in matters of great importance as shall enable a patentee to support his patent if brought into a court of law, as most of the actions upon patents have turned on the insufficiency of the specification.
The time however is sometimes enlarged to such longer period as may be thought proper by the Attorney or Solicitor General, according to the circumstances of the case, upon a request to him at the time he is applied to for his report upon the petition for a patent, particularly if the inventor in his affidavit of his invention makes oath that it is his intent to apply for patents for Scotland and Ireland, in which case it is usual to allow six months, as patents take longer time to be completed in those countries than in England; and if the specification was enrolled here within the usual time, the invention might perhaps be brought into public use in those countries before such patents had passed the respective seals, whereby the inventor would lose the benefit of them. But it should be observed, that if the application is not made at the time beforementioned, and an order procured accordingly, the King’s warrant will be made out with the proviso for enrolling a specification in the usual time, and it will then be too late to have the time enlarged without incurring the expense and loss of time (which is often a greater object with inventors than the expense) of beginning the process of soliciting the patent de novo, as the Lord Chancellor himself has not the power of dispensing with the proviso, or enlarging the time limited for enrolling the specification, if the patent has passed the great seal.
In the case, ex parte Koops, 6 Ves. 599, 22d Jan 1802, a petition was presented by the patentee of an invention of making paper of straw, and the object of it was, that the Lord Chancellor would dispense with the enrolment, or that some precautions should be taken to prevent the specification from being made public, suggesting the danger that foreigners might obtain copies of the specification in consequence of such enrolment.
Lord Eldon, C. “How can I do this? Either upon this or some other case in the last session a clause for this purpose was inserted in an act of parliament; and upon the motion of Lord Thurlow, upon reasons applying not only to that but to all cases, and seconded by Lord Rosslyn, the clause was universally rejected, and rejected, as it appears to me, upon very substantial grounds, in which I readily concur. As to the worth of the apprehension suggested, a man has nothing more to do than to pirate your invention in a single instance, and he will then force you to bring an action, and then the specification must be produced.
“But with regard to the King's subjects a very strong objection occurs, which makes it necessary that the specification should be capable of being produced. They have a right to apply to the Office to see the specification, that they may not throw away their time and labour, perhaps at a great expense, upon an invention, upon which the patentee might afterwards come with his specification, alleging an infringement of his patent, when if those persons had seen the specification, they never would have engaged in their project. The enrolment is therefore for the benefit of the public.”
It was then desired that the time, which would expire on the 17th of the next month, might be enlarged, in order that the petitioner might apply to parliament.
Lord Eldon, C. “I cannot do that if the patent has passed; for the patent is void, if the proviso is not complied with. You should have applied to the Attorney General before the patent passed, for a longer time upon the special circumstances. I cannot take the Great Seal from a patent, and repeal it in the most essential point: it is a legal grant, with a proviso for the benefit of all the King's subjects. You can do nothing, except by an act of parliament to enlarge the time mentioned in the proviso.”
The petition was dismissed.
It may, perhaps, upon a first view, excite some surprise on referring to the cases hereafter given, that although the statute upon which the legality of these patents is founded, passed at so early a period as the reign of King James the first, yet the decisions (which the single exception of the first case) are all of so recent a date as the present reign; and the compiler fears he may, on that account, be accused of professing more than he has performed, or of want of due diligence in searching for cases; in answer to which he has only to refer to the following expression of sone whose diligence and knowledge will not, he is very confident, be disputed, viz. the late Lord Chief Justice of the Court of Common Pleas, Sir James Eyre, who, so recently as the 16th May, 1795, in the case of Boulton v. Bull, after stating that patent-rights are no where accurately discussed in our books, said, that “the case of Edgeberry v. Stephens is almost the only case upon the patent-right under the saving of the statute fo James the first that is to be found.” Under the sanction of so high an authority, it might have been deemed unnecessary to make much research into the old books, in full confidence that it would be totally useless; such research has, however, been made through the books of reports subsequent to James the first, and, as might have been predicted, without finding any other important cases upon patent-rights than those which are hereafter given. But when it is considered that these grants were not so much in use in former periods as they have been of late years, sometimes not more than eight or ten, and fequently not so many, having passed in a year, although at present there are seldom so few as one hundred; it is by no means surprising that more subjects of litigation should arise now than in former times. Whether the great increase i nthe number of patents in the present age has arisen from the increased ingenuity, or from the greater spirit of speculation of our cotemporaries [sic], or from what other cause, is not for us to inquire, but such is the fact.
Another reason why so few cases upon this subject are reported is, that many, or perhaps most of the trials upon this subject, have been at Nisi prius, and therefore it is not been practicable to give so many of those decisions as could have been wished; the books in general only having those cases which have come before the Court upon motions for new trial, upon cases reserved at Nisi Prius for the opinion of the Court or some other reason, making it necessary to be heard in full Bench. Some instances, however, which appeared important, have been reduced into the form of reports from papers obligingly furnished by gentlemen of the profession who were concerned in the causes; and as all the points of law which were considered as settled, are given either in the arguments of counsel, or the opinions of the judges in the cases reported in this work, particularly in the elaborate reports of the cases of Boulton v. Bull and Hornblower v. Boulton, which occupied so much of the time of the Courts of King's Bench and Common Pleas, it is hoped that all the decided points respecting patents of invention and the rights of patentees, will be by this work brought at once before the public.
It may, however, be proper to observe, for the information of those not acquainted with law proceedings, that a cause tried at Nisi prius is not in itself final, although the parties frequently think it advisable, from the nature of the evidence adduced upon the trial, to acquiesce in the verdict of the jury; but it is still competent to them to move for a new trial; or other parties, upon a similar case arising, may think proper to resort to the court. Yet it seldom happens that when parties to a suit have acquiesced in a verdict at Nisi prius, other parties will think it expedient to bring the same point before the court; and therefore, under such circumstances, the point in question may be considered as established.
The statute of 21 Jac. limiting the power of the Crown to grant these monopolies for any term exceeding fourteen years, no extension can be obtained by any authority short of an act of parliament; and it was at one time intended to give in this work a list of all the acts which had passed for that or other purposes connected with patents of invention, but upon further consideration it has been throught unnecessary to increase the size of the work by inserting matter, which although not absolutely foreign to the subject, would not give any elucidation of the law relating to it. It has been thought equally unnecesary to follow the example of the author of “a Treatise upon the Law and Practice of Patents for Inventions,” by giving the form of the report, warrant, bill, and other proceedings in the progress of passing a patent, which are prepared officially; and it has also been considered not only inexpedient, but as tending rather to deceive than to afford information, to give the form of a specification, as hath been done by the gentlemen who have before treated upon this subject, that instrument beign of too much importance to be considered as a mere matter of form, the validity of the patent depending in a very great degree upon its accuracy and sufficiency.