January 20, 2018 · 3 min read
Willam Rosen’s book The Most Powerful Idea in the World had an interesting chapter on the origins of patent law.
I might have surmised that before patent law, inventors had no way of obtaining exclusive privileges to their inventions. But in fact, monopolies of this kind were granted to inventors and craftsmen going back thousands of years. Modern patent law, dating from the early 1600s, was a reform of this practice, limiting it to true inventions, while at the same time establishing the inventor’s right as a principle, and codifying a convention into law.
Here’s the story as excerpted from Chapter 3, “The First and True Inventor”:
In its original meaning, the word “patent” had nothing to do with the rights of an inventor and everything to do with the monarch’s prerogative to grant exclusive rights to produce a particular good or service. The idea of exclusive commercial franchises crops up occasionally throughout history: Five centuries before the Common Era, the Greek colony of Sybaris granted exclusive rights for a year to a cook who invented a particularly good dish … in 1421, the Lords of the Council for the city of Florence granted Filippo Brunelleschi three years’ exclusive use of the boat he designed to move the stones needed to build the great Duomo.
As a word, “patent” enters the lexicon in something approaching its modern meaning in 1449, when the mad king Henry VI signed a document known as a letter patent (so called because such letters were issued openly, rather than under seal; the phrase “patently obvious” is cognate) granting a glazier named John of Utynam a twenty-year exclusive right to use his secret method for making the colored glass to be used at the chapel at Eton College.
The practice, however, escalated problematically under the Tudors:
Patents were a reliable source of revenue for a monarch whose taxing authority was severely circumscribed by Parliament, and a powerful tool for rewarding friends and promoting commerce, even to the point of encouraging skilled craftsmen to immigrate to England. By the time of the last of the Tudors—Elizabeth—the royal trade in patents was, however, dangerously out of control. She granted monopolies for the selling of salt, or making of paper, to courtiers who had two things far more important to the queen than inventiveness: loyalty and ready cash. In 1598 she issued a letter patent to Edward Darcy, a courtier ranking high enough in the Queen’s regard that she admitted him to her Privy Chamber, granting him a monopoly on the manufacture, importation, and distribution of playing cards in England, evidently out of some queenly feeling that her subjects ought to be doing something better with their idle hands than dealing pasteboards with them. Unwilling to ban the practice (a slightly different monopoly had been granted by her father twenty years earlier), she was determined to regulate it, and to enrich one of her court favorites at the same time.
This patent was challenged in court in 1602, and overturned:
Chief Justice Popham … ruled that Darcy’s grant was forbidden on several grounds, all of which violated the common law. The most important one … was the judgment of the court that the Crown could not grant a patent for the private benefit of a single individual who had shown no ability to improve the “mechanical trade of making cards,” because by doing so it barred those who did. In other words, the court recognized that the nation could not grant an exclusive franchise to an individual unless that individual had demonstrated some superior “mastery” of a particular trade. Though it would be twenty years before it would be written, one of the foundations of Britain’s first patent law—the doctrine that patent protection must be earned by demonstrating mastery of the method for which protection was asked—was laid.
About two decades later, the first patent law was written by Edward Coke (prounced “cook”), one of the most prominent and successful lawyers in England:
Coke, who had in the intervening years been made Lord Chief Justice of England, drafted the 1623 “Act concerning Monopolies and Dispensations with penall Lawes and the Forfeyture thereof,” or, as it has become known, the Statute on Monopolies. The Act was designed to promote the interests of artisans, and eliminate all traces of monopolies.
With a single, and critical, exception. Section 6 of the Statute, which forbade every other form of monopoly, carved out one area in which an exclusive franchise could still be granted: Patents could still be awarded to the person who introduced the invention to the realm—to the “first and true inventor.”
This was a very big deal indeed, though not because it represented the first time inventors received patents. The Venetian Republic was offering some form of patent protection by 1471, and in 1593, the Netherlands’ States-General awarded a patent to Mathys Siverts, for a new (and unnamed) navigational instrument. And, of course, Englishmen like John of Utynam had been receiving patents for inventions ever since Henry VI. The difference between Coke’s statute and the customs in place before and elsewhere is that it was a law, with all that implied for its durability and its enforceability.
The importance of patents in the story of progress is that they represent one way that innovation can be rewarded, and thus an incentive to finance it. As I mentioned in a previous post based on Rosen’s book, I am starting to come to the conclusion that means and methods of financing research and development are crucial to this story.
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