Intellectual Property Law for Engineers, Scientists, and Entrepreneurs. Howard B. Rockman
of government were of an authoritarian nature, ruled by monarchs, sovereigns, kings, and emperors, the practice that was most prevalent then was to grant royal favors to certain individuals, giving exclusive rights to sell certain commodities which had previously been available to be sold by anyone. Needless to say, this type of monopoly did not find favor with the general public. These so‐called city or state monopolies were outlawed in the Roman Empire in a proclamation by Emperor Zeno in 480 AD. His proclamation read:
“We order that no one will dare exercise a monopoly upon any garment or fish or … any kind of thing in that respect, or any material, whether it is already ascertained in a sacred way, or by a later rescript which ascertains it, or by empirical decree, or by a sacred notation of a kindness…”
Similar state or royal monopolies were outlawed in medieval Europe and Great Britain at much later dates. Despite this general prohibition on state monopolies, various practices developed to reward individuals for certain unique ideas. The archives of Venice indicate that protection was granted from about the year 1200 AD to dredges, wells, flour mills, and other water‐controlling or water‐utilizing facilities. The Guilds of Venice, unlike those of most medieval Europe, encouraged the granting of protection to new devices and arts. Thus, between 1400 and 1432 AD, the Senate of Venice enacted a statute providing a 10‐year exclusive privilege to use any machine or process that a person invents to speed up silk‐making or to improve the process. This grant was given by the Guild Welfare Board of the Republic, and was soon extended to other devices and arts such as flour mills, cook stoves for die shops, a device for raising water, the art of printing, and mills for grinding grain products. All this protection was granted in the fifteenth century. Such exclusive grants were made not only to encourage the citizens of Venice to invent unique materials and methods, but also to attract ingenious persons into the republic.
Before granting a patent, the Guild Welfare Board of Venice usually examined the invention to be certain it was new and, indeed, useful. The disclosure of the invention was made by public use, not by filing a written document such as a patent application, and examination of the invention took place by interview, observation, and the explanations of experts. The grant of exclusivity was often based on a showing that the invention had to be truly useful and could achieve the advantages asserted by the inventor. What is believed to be the world’s first general patent statutes evolved from these practices, and, in 1474 AD, the Senate of the Republic of Venice reorganized its patent system by enacting a statute with the clear intent of encouraging both native ingenuity and the importation of new ideas. The preamble to the statute is noteworthy, and is dated March 19, 1474:
“We have among us men of great genius, apt to invent and discover ingenious devices; and in view of the grandeur and virtue of our city, more such men come to us every day from diverse parts. Now, if provision were made for the works and devices discovered by such persons, so that others who may see them could not build them and take the inventor’s honor away, more men would then apply their genius, will discover, and will build devices of great utility and benefit to our commonwealth.”
This was followed in the Venice law by the grant of a 10‐year exclusive right to anyone who constructed any new and ingenious device in Venice, which was not previously made. Notice had to be given of the invention to the Guild Welfare Board of Venice. The penalty for infringement was 100 ducats, and the infringing device would be destroyed immediately. It should be noted, from the vantage point of modern patent statutes, that this act by the fathers of Venice included concepts that the device be actually constructed, that it be useful, and that it be novel. Also, the further test of innovation apparently is referred to by the term “ingenious devices” in the Venice statute. It is interesting to note that most of these concepts are presently embedded in modern patent laws worldwide. Today, you may obtain a patent on a new, useful, and unobvious device, but you need not construct your invention to obtain an enforceable patent.
Modern patent law systems developed out of a realization by the state that there was indeed a societal need to both recognize and protect a “property right” with respect to inventions, as opposed to making such grants a privilege, although for reasons having very little to do with any perceived “natural law” right. At the time of the creation of the United States, this “property right” theory and its realization was beginning to come into full flower in England. As Great Britain was the mother country, its laws were most familiar to those in the new nation. Thus, the United States embodied a property right in inventions as part of the Constitution in 1787.
The term “exclusive property right” involves the limited‐term exclusive right with regard to the invention, as opposed to a property right in ownership of the invention itself, or in the physical device embodying the invention. This distinction is important because it is almost embarrassing how often the controversial idea of a property right in a physical invention is confused with the non‐controversial idea of exclusive property rights in a patent. You must have the patent to acquire the exclusive property right.
While most of the history of the U.S. patent system relies upon English law, it is now clearly established that the custom of granting limited‐term exclusive privileges to inventors or importers for introducing new trade or industry into a state began in the Italian city‐states, and particularly in Venice late in the fourteenth and early in the fifteenth centuries. From there, the patent custom spread to Germany, France, the Netherlands, England, and to the United States.
The term “patent custom” describes the practice in each country of granting inventors limited exclusive rights in inventions, but without a fully developed uniform system or administrative practice, nor consistent legal principles applicable under rules of law which properly define a true patent system. The first attempts to develop such a patent system occurred in England, and subsequently the United States, both of which will be discussed shortly in detail. Prior to the U.S. Constitution, some of the post‐colony states were granting patents, while other states had in their Constitutions provisions declaring that the granting of monopolies was abhorrent. Certain states were enacting individual private laws granting exclusive patent rights. Under the English patent custom, as it had been in Europe for almost four centuries at the time of the creation of the American republic, patents were granted not only to those who made new inventions, but also to those who brought inventions known or used elsewhere and introduced them into the country. The patent custom had developed and spread throughout Europe primarily as a means of encouraging importation of new trade or industry, and only secondarily as a means of encouraging the creation of new inventions. The U.S. Congress, in its deliberation of the Patent Act of 1790, the first U.S. patent law, specifically removed provisions that would have expressly authorized patents of importation.
At the time the U.S. Constitution was ratified, a patent custom existed in a number of states which granted exclusive rights in inventions by private legislative enactment. There was nothing in the Constitution which precluded states from continuing to issue patents, but the advent of a federal patent system was viewed by almost everyone as removing any need for state patents. A few states, most notably New York, would continue to issue state patents for several decades after the Constitution came into effect.
3.1.2 The British Patent System
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