Chap. XIV. Letters patent. Monopolies. CHAPTER XIV. PATENTS. THE term "Letters Patent" in the widest sense denotes grants made by the Crown of some right or privilege, as, for example, grants of lands, titles of honour, or offices; e.g., the office of one of His Majesty's counsel. But by "Patents" in modern times we generally understand grants by the Crown to inventors of the sole and exclusive right to "use, exercise, and vend" their inventions within the United Kingdom and the Isle of Man.3 In ancient times the Crown asserted a prerogative right to make grants of monopolies. Coke describes a monopoly as being "an institution or allowance by the King by his grant, commission, or otherwise, to any person or persons, bodies politique or corporate, of or for the sole buying, selling, making, working, or using of anything, whereby any person or persons, bodies politique or corporate, are sought to be restrained of any freedom or liberty that they had before, or hindered in their lawful trade." But, at common law, no grant of a monopoly was valid in respect of articles in common use, or if it purported to give the sole right to exercise a known occupation;5 for a patentee or grantee must be the inventor, or at least the introducer into the realm, of the 1 I.e., Litera Patentes, open letters, 2 Steers v. Rogers, [1893] A. C. 235. 6 Vict. c. 43), s. 56, and therefore a County Court has no jurisdiction to try an action for the infringement of a patent where the validity of the patent is in dispute: Reg. v. Halifax, [1891] 1 Q. B. 793; 2 ib. 263. 4 Coke, 3rd Instit. 181. See, as to the history of monopolies, Edmunds on Patents, Ch. II. 5 Case of Monopolies, 11 Rep. 84 b. 6 See Darcy v. Allin, (44 Eliz.), Noy's Reports, 178, 182; per Jessel, M. R., in Marsden v. Saville Co., 3 Ex. D. 206. Cf. Clothworkers of Ipswich Case, Godb. 252. thing which is the subject of the patent or grant; though under Chap. XIV. the Act of 1883 the grant may be made to others jointly with him.1 After great complaints, in the reigns of Elizabeth and James I., of the abuse of the prerogative by the granting of illegal monopolies, the law was, in 1624, declared and defined by the Statute of Monopolies, 21 Jac. 1, c. 3, which, after declaring that monopolies are "altogether contrary to the laws of this realm" and shall be utterly void, proceeds to except patents for the term of fourteen years or under, granted for new inventions. This exception is contained in the following saving clause : S. 6. "Any declaration before mentioned shall not extend to any letters patent and grants of privilege, for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor or inventors of such manufactures, which others, at the time of making such letters patent and grants, shall not use so as also they be not contrary to the law, nor mischievous to the State by raising prices of commodities at home, or hurt of trade, or generally inconvenient; the said fourteen years to be accounted from the date of the first letters patent or grant of such privilege hereafter to be made; but that the same shall be of such force as they should be if this Act had never been made, and of none other." 994 The validity of a patent for an invention is to be ascertained by reference to the terms of the above section of the 21 Jac. 1, c. 3; and it will be observed that the section requires (inter alia) that::(1) The subject-matter of the patent must be a "manufacture," and must be "new" within the realm.5 (2) The patentee must be the "true and first inventor." (3) The invention must be one not already in use within the realm. Statute of 21 Jac. 1, c. 3. (1) As regards the legitimate subject-matter of a patent, the Manufacture. word "manufacture," as used in the statute, is taken to mean a vendible article produced by the art and hand of man. 1 See p. 230. 2 There described as privileges of "the sole buying, selling, making, working, or using anything within this realm." 3 Such grants were valid at common law; 3rd Instit. 184. G.P.P. See Bell's Principles of the Law of Scotland, § 1349 (the law of Scotland as to patents is the same as that of England: ib.). 5 As to what is meant by "the realm," see Rolls v. Isaacs, 19 Ch. D. 268. 15 Chap. XIV. New substance. New mechanism. New process. No patent for a principle. "The word manufactures' has been generally understood to denote either a thing made, which is useful for its own sake, and vendible as such, as a medicine, a stove, a telescope, and many others; or to mean an engine or instrument, or some part of an engine or instrument, to be employed, either in the making of some previously known article, or in some other useful purpose, as a stocking frame, or a steam engine for raising water from mines. Or it may perhaps extend also to a new process to be carried on by known implements, or elements, acting upon known substances and ultimately producing some other known substance, but producing it in a cheaper or more expeditious manner, or of a better and more useful kind." But "no merely philosophical or abstract principle can answer to the word 'manufactures.' For instance, supposing a person discovered that three angles of a triangle are equal to two right angles, that is an abstract discovery and would not be the subject of a patent."2 Something of a corporeal and substantial nature, something that can be made by man from the matters subjected to his art and skill, or at the least some new mode of employing practically his art and skill, is required to satisfy this word.”3 The patent must be for the vendible matter and not for the principle.* The true foundation of all patents is the manufacture itself;5 but the thing patented may be either a new substance, or a new mechanism, or a new method or process whereby articles can be produced more quickly and cheaply, though neither the thing produced nor the machinery producing it be novel; for "no novelty is required as to the object; the novelty may be in the means for effecting the object, whether old or new.”7 Although there can be no valid patent for a mere principle per se, yet where a principle is so embodied in and connected with corporeal substances as by a practical method or process to produce new results and effects in any art, trade, or manual occupation, there may be a valid patent for the combination of the new principle with the practical method of applying it.8 1 Per Abbott, C.J., The King v. 4 Per Heath, J., Boulton v. Bull, 2 H. 5 Per Buller, J., ib. 486. 6 See as to new processes, Crane v. Price, 4 M. & Gr. 580; 61 R. R. 614; Edmunds on Patents, 24; Crossley v. 7 Per Wood, V.-C., Curtis v. Platt, 3 Ch. D. 136 (note). 8 See per Eyre, C.J., in Boulton v. Bull, 2 H. Bl. 492, 494, 495; 3 R. R. 465 Otto v. Linford, 46 L. T. 35; per Pearson, J., Badische Anilin v. Lerin stein, 24 Ch. D. 171, 172. An invention is not the same thing as a discovery; if a man Chap. XIV. does nothing more than discover that a known machine can "Invention," produce effects which it was not known that it could produce, not discovery. his discovery, however great and useful, is not a patentable invention. Some addition must be made to previously known. inventions, and either a new and useful thing or result must be produced, or a new and useful method of producing an old thing or result. But the discovery how to use a known thing for a useful purpose for which it has never before been used may be an "invention" if there is novelty in the mode of using it as distinguished from novelty of purpose, or if any new modification of the thing, or any new appliance, is necessary for using it for its new purpose.1 A combination may be the subject of a valid patent if the com- Combination. bination is new and useful, though each of the parts which enter into it be old, and the patent gives protection for each part that is new and material for the process, but not for a part which would not itself have been patentable.3 inventor. (2) A person, who in a popular sense was not the true and first True and first inventor, may yet be "the true and first inventor" in a legal sense; for instance, he may have been the first to have imported some one else's invention from abroad; or he may have been the first to make known an invention which others had also discovered but had not made known to the public. In Plimpton v. Malcolmson, Jessel, M. R., said:-+ 66 Shortly after the passing of the statute, the question arose whether a man could be called a first and true inventor who, in the popular sense, had never invented anything, but who, having learned abroad (that is, out of the realm, in a foreign country, because it has been decided that Scotland is within the realm for this purpose) that somebody else had invented something, quietly copied the invention, and brought it over to this country, and then took out a patent. As I said before, in the popular sense he had invented nothing. But it was decided, and now, therefore, is the legal sense and meaning of the statute, that he was a first and true inventor within the statute, if the invention, being in other respects novel and useful, was not previously known in this country-known' being used in that particular sense, as being part of what had been called the common or public knowledge 1 Lane-Fox v. Kensington Co., [1892] 3 Ch. 424, 426, per Lindley, L.J. Per Lord Campbell, C. J., Lister v. Leather, 8 E. & B. 1016. See Clark v. Adie, 2 App. Cas. 315. 3 Per James, V.-C., Parkes v. Stevens, 8 Eq. 367, 368. 4 Plimpton v. Malcolmson, 3 Ch. D. 555. Prior discovery not patented or published. Chap. XIV. of the country. That was the first thing. Then there was a second thing. Suppose there were two people, actual inventors in this country, who invented the same thing simultaneously, could either be said to be the first and true inventor? It was decided that the man who first took out the patent was the first and true inventor. Then there was another point. If the man who took out the patent was not, in popular language, the first and true inventor, because somebody had invented it before, but had not taken out a patent for it, would he still, in law, be the first and true inventor? It was decided he would, provided the invention of the first inventor had been kept secret, or, without being actually kept secret, had not been made known in such a way as to become a part of the common knowledge, or of the public stock of information. Therefore, in that case also, there was a person who was legally the first and true inventor, although, in common language, he was not, because one or more people had invented it before him, but had not sufficiently disclosed it." Anticipation -prior user or publication. Prior user or publication. This rule, however, that a communication from abroad enables a person to take out a patent, is anomalous; and a communication made in England by one British subject to another British subject does not make the recipient the "true and first inventor."1 Letters patent may be granted to a foreigner resident abroad for an invention communicated to him by another foreigner also resident abroad.2 66 (3) The consideration for a patent is the communication to the public of a process that is new." It is therefore often set up by way of defence to an action for infringement of a patent, that the alleged invention, the subjectmatter of the patent, has been made known, or has been anticipated by use within the realm. "If the public once becomes possessed of an invention by any means whatever, no subsequent patent for it can be granted either to the true or first inventor himself, or any other person, for the public cannot be deprived of the right to use the invention, and a patentee of the invention could not give any consideration to the public for the grant, the public already possessing everything that he could give."4 "It is not necessary that the invention should be used by the public as well as known to the public. If the invention and the mode in which it can be used has been made known to the public 1 Marsden v. Saville Co., 3 Ex. D. 203. See Lewis v. Marling, 10 B. & C. 22; 34 R. R. 313. 2 Per Lord Cairns, C., Re Wirth, 12 Ch. D. 303; Act of 1883, s. 4 (1). 3 Per Lord Blackburn, Patterson v. Gas Light Co., 3 App. Cas. 244. Hindmarch on Patents, 33; approved, as a correct statement of the law, per Lord Blackburn, 3 App. Cas. 244. |