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1 A history of patents
Introduction
The law of patents is a modern invention. This does not mean, however, that the history of patents is short or uneventful. It is history which could still begin at many points and provide fruitful and original debate. This is because âpatent history is a subject that is still largely waiting to be writtenâ.1 Where the expanse of uncharted territory is so vast it might seem strange to begin with the role of private legislation: a relatively esoteric area which even when a common part of the legal landscape was described as something of which the public were âprofoundly ignorant, and possibly, if they knew, they would be callously indifferentâ.2 Yet the role of private legislation in the development of patent law has been largely unexplored or overlooked. Indeed, it has often been dismissed with a few notable highlights being used to demonstrate matters which are often beyond their scope. The history so far presents numerous accounts relating to the passage of the Statute of Monopolies in 16243 and there are notable studies of the economic history of patents from the late seventeenth century to the nineteenth.4 In addition there are studies which were attempting to use history to address the (then) present day issues with the patent system5 or deal with particular issues, such as Parliamentary rewards6 or the movement for the abolition of the patent system.7
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The history of patents, however, is noted by its periods of silence. It remains a patchwork of discussions, often about similar matters. It is also littered with simplification. This discussion will attempt to challenge one of the commonly held views, typified by Boehm and Silberstonâs statement:8
This statement, at one level, is true. But it misses the rich tapestry of activity where Parliamentarians considered patents and inventions. Indeed, in one sense, it is just plain wrong as there were numerous patent statutes during the seventeenth and eighteenth century â but they were private legislation. While the form and nature of private legislation will be discussed below, in summary, it is an Act of Parliament which creates a special rule for an individual â an exception to general regulation. This discussion will consider whether, and the extent to which, those exceptions became the general rule.
The exception becomes the rule
In the simplest terms, each and every person has the right to petition Parliament and ask for a statute to help just them. If something was prohibited by an Act of Parliament (any Act) you could ask Parliament to exclude you from its application.9 Similarly, if you wanted to override another personâs rights you could ask Parliament to let you (and just you) do it. Just because you could ask Parliament to make a special law for you, it does not mean it will do so or where it does it might impose certain conditions upon you. As one successful private Act would usually, although not always, lead others to petitioning Parliament for the same thing or something similar, so there was a process of evolution and with it a development of law. Put simply, private legislation, as it could relate to anything, became a testing ground for policy. As Clifford puts it in his seminal work10 on the history of private legislation published in 1885:
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In relation to local Acts relating to local government a similar point was made by Frederick Spencer in 1911:
It is possible to go further than Clifford and Spencer, however, as sometimes individuals sought special exemptions from rules and Parliament considered why a rule existed and then decided whether the Bill should be passed or not. Thus, private legislation not only provides a testing ground for laws which were later relaxed, but also for laws which Parliament refused to loosen. Indeed, where Parliament spoke on an issue the judges often followed. Just as the common law went through an âevolutionâ or, as the Solicitor General (the future Lord Mansfield) suggested in Omychund v Barker,13 âthe common law. . . works itself pureâ14 so did legislation through a prism of private Bills.
The role of private legislation in patent history
This discussion looks at private legislation, or more precisely individual private petitions, Bills and Acts, and to the extent possible it seeks to establish whether, or at least the extent to which, private legislation shaped the general law of patents. It will also look at the significance, if any, the courts placed on private Acts when they began interpreting the general rules Parliament finally enacted. In other words, it will seek to establish the extent to which Cliffordâs general statement about private legislation applies to the development of patent law. In contrast to other histories of patent law, it will put private legislation centre stage. This is not to suggest that private legislation has been ignored in other histories of patent law. But usually it has given little or no weight.15 Typical is a statement by Christine MacLeod:
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Accordingly, while MacLeod17 and others18 make reference to private legislation it is only occasionally that commentators19 have seen those Acts as demonstrating Parliamentâs role in developing wider patent policy.20 The histories that have been written have concentrated on the grant of patents, and the practice of the law officers, as well as the number or type of patent being granted rather than the legislation governing practice. In this story, the theatre is firmly Parliament and the actors who directed patent policy are shown to be both within the Houses of Parliament and without in the form of petitioners. It is a story which involves men of influence, power and money. Yet, as with many Parliamentary stories, and particularly those which often were played out in committee rooms rather than on the floor of the Houses we have a canvas with many gaps â often gaps which can never be properly filled. It starts in the session of Parliament in 1621 where the Bill of Monopolies passed in the Commons, but was defeated by the Lords as this was also the year in which two private Bills relating to patent law were promoted albeit one was of a very strange nature as will be seen. Our story reaches its conclusion in the final session of Parliament where a private Act relating to patent law was enacted (or indeed, sought), namely in 1907. Over most of the first two hundred years of this period, patents went from being a rare exclusive privilege granted to the few (in fact, the very few) to being available on equal terms to everyone who met clear rules. There are difficulties however, over this same near three-hundred-year period, when the records of Parliament were developing with some periods having detailed Parliamentary diaries and others having few records beyond that recorded in the journals of Parliament.21
A series of stories
The role of private legislation in the development of patent law is not part of a generally progressive history towards a new enlightened era, rather it...