The Origin of Patent Law in the United Kingdom

1In the early days, patents were granted not as monopolies in ’the etymological sense of the term but as grants in the furtherance of particular industries’. (Wyndham Hulme, ‘The History of the Patent System under the Prerogative and at Common Law’, 12 LQR 141) The early grant were not confined to new inventions; there is evidence to show that grant for the import of new machine to scour the entrances of harbours discovered ‘by diligent travel’ was also entertained. (Ibid, pp 145-146.) The details of the circumstances in which the Crown came to interfere with the establishment of industries have been documented in detail. (Wyndham Hulme, ‘The History of the Patent System under the Prerogative and at Common Law’, 12 LQR 141; Wyndham Hulme, ‘On the Consideration of the Patent Grant, past and present’, 13 LQR 313; Wyndham Hulme, ‘The History of the Patent System under the Prerogative and at Common Law–A Sequel’; 16 LQR 44.)

2In the United Kingdom, regulation of trade and commerce had been a sovereign subject for many centuries. The Crown was known to grant charters and patents to facilitate and regulate trade. The charter establishing the East India Company, which was granted for trading purposes, aptly illustrates the interest of the Crown in regulating trade and commerce. The present patent system in United Kingdom owes its origin to the practice of granting monopolies for new inventions introduced during the reign of Elizabeth I. The system, however, did not have the desired effect of encouraging new industries and eventually, the Crown promised to recall some of the patents granted. (Halsbury’s Laws of England, vol 35, fourth edn, p 131, para 302.) These privileges were offered by the Crown for public good, though the grant of these monopolies went against the common right.

3The famous Case of Monopolies saw one such patent being tried in the courts questioning the grant of monopoly for importing, manufacturing and selling playing cards as invalid. (Darcy v Allein (1602) 1 Web Pat Cas 1, Noy 173, Moore KB 671, 11 Co Rep 85b. The case reported in Sir F Moore’s Reports, King’s Bench is in an incomprehensible mixture of English and French.) The court concluded that the grant of such monopoly was illegal as it prevented others from carrying on their ordinary trade. The Crown issued a proclamation known as ‘The Book of Bounty’ in 1610, which excluded new inventions from the general prohibition. (Terrell on the Law of Patents, fifteenth edn, 2000, p 3.) The rampant abuses of the monopolies lead to the passing of the Statute of Monopolies in 1623. (21 Jac 1, c 3.) The Statute of Monopolies restricted monopolies already granted and prohibited the granting of new monopolies, except to the true and first inventors of a manner of new manufacture, which were not used by others at the time of grant. This exception gave an inventor the exclusive right to make and use an invention for fourteen years. It was contrary to the common law as well as to the Statute of Monopolies for the Crown to grant a monopoly to any person of any known manufacture. The Statute of Monopolies was only declaratory of the common law. (Australian Gold Recovery Co v Lake View Consols Ltd (1901) 18 RPC 105, p 114, [1901] AC 142.)

4After the enactment of the Statute of Monopolies, the development of the law was left to the courts with few interventions by Parliament until 1883. It was soon decided that a patentee must do something to make it possible for others to carry out the manner of new manufacture after the monopoly had expired. At first it appears to have been sufficient if the patentee trained two apprentices who could later carry out the method. The time period for training an apprentice was seven years and the time taken for training two apprentices, ie, 14 years, came to be equated with the term of the patent. But by the early eighteenth century it was required that he should disclose full particulars of his invention. If he did not do so, anyone interested could seek repeal or revocation by writ of scire facias. Scire facias refers to a writ requiring the person against whom it is issued to appear and show cause why some matter of record should not be annulled or vacated. (See American Cyanamid Company (Dann’s) Patent (1971) RPC 425, pp 435-436, [1970] FSR 443.)

5The origins of modern patent law can be traced back to the Statue of Monopolies as it excluded, from the ambit of monopolies, letters patent and grants of privilege for new manufactures. Various patent legislations were introduced from 1852 onwards culminating with the Patents Act 1977 which substantially changed the patent law system in the United Kingdom.