Patents. In the widest sense of the term, a patent is a royal grant made by letters-patent (litteræ patentes) or open letters, 'so called because they are not sealed up, but exposed to open view, with the Great Seal' (or a lawful substitute for the Great Seal) 'pendent at the bottom; and are usually addressed by the sovereign to all the subjects of the realm' (Blackstone). The principal grants made by letters-patent are titles of honour, such as peerages and baronetcies, appointments to judicial and administrative offices, charters of incorporation, and monopolies of the right to make, use, exercise, and vend new inventions. Of these grants it is here proposed to consider the last mentioned alone, to which the term patent is in common parlance restricted. It may, however, be observed in passing that the procedure connected with royal grants other than patents for inventions is still intricate and technical, resembling that which was in use for patents of invention before the Patent Law Amendment Act of 1852, and that such grants are enrolled on the Patent Rolls, and may be seen at the Record Office or, in the case of recent grants, at the Chancery Enrolment Office, London.
From a very early period in our history the sovereign has enjoyed and exercised the prerogative of securing to inventors, for a limited term, 'the sole right of making, using, and vending' new and useful inventions. Thus, it is stated that Edward III., on the representation of some alchemists, granted a commission to two friars and two aldermen to inquire whether a philosopher's stone might be made, and, on their reporting that the project was feasible, granted to the two aldermen a patent of privilege that they and their assignees should have the sole making of the philosopher's stone. Upon the royal prerogative, however, of which this case offers an early, though in all probability by no means the earliest, illustration, the common law placed certain definite and well-understood restrictions. (1) The sovereign could not grant the sole right to sell articles in common use. Thus, letters-patent granting to one John Pechey the sole importation of sweet wines into London were, at a parliament held in the fiftieth year of the reign of Edward III., declared to be void. (2) A grant of the sole right to exercise a known occupation was bad. This was decided as to the manufacture and importation of playing-cards in the leading case of Darcy v. Allin. (3) The grantee was required to have been at least the introducer of the invention within the realm. (4) The term of the grant must be for some limited period, such as might be sufficient for the instruction of others. (5) The subject-matter must be such as, in the result, led to a new trade or manufacture. (6) The patented invention must possess the incidents of utility and novelty, and must not be prejudicial or inconvenient to trade (1 Webster Patent Cases, 7. n.).
In the reign of Elizabeth, however, and still more emphatically in the reign of James I., the old common-law monopoly changed its character. The number of bonâ-fide inventions or discoveries was small. But the financial and political difficulties of the sovereign were great. The royal prerogative of granting limited monopolies 'for the good of the realm and the furtherance of trade' came, with many other doubtful expedients, to the sovereign's assistance. The common-law limitations were ignored. Currants, salt, iron, powder, cards, calf-skin, paper, tin, sulphur, and a hundred other commodities in common use were appropriated to monopolists for practically unlimited periods. The patentees were enabled to charge extortionate prices for inferior articles, to enter (at least under the saltpetre patents) private houses and ransack stables and cellars for infringing articles, and to have infringers brought before the council and punished for contempt of the royal authority. After a protracted struggle, in the course of which Queen Elizabeth recalled most of her obnoxious grants, and James published a counterblast against monopolies, which influenced his subsequent conduct very slightly, the famous Statute of Monopolies was passed in 1624. The purview of the measure has often been misrepresented. It did not, as we have seen, create the royal prerogative to grant letters-patent for inventions. But it declared that all such monopolies as the sovereign had latterly been granting were contrary to law and void. It then excepted from this sweeping prohibition (inter alia) 'grants of privilege for the term of fourteen years or under, thereafter to be made, of the sole working or making of any manner of new manufactures within the realm, to the true or first inventor or inventors, 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 to the hurt of trade, or generally inconvenient.'
This saving clause in the Statute of Monopolies is the foundation of the modern English patent system. It preserves, and at the same time limits, the royal prerogative to grant monopolies of inventions, and it gives a most succinct, and yet a complete, statement of the characteristics of a valid patent-grant. The term of the grant is to be fourteen years or under; and patents are in fact now always granted for a term of fourteen years. The grantee is to be 'the true and first inventor'—words which a series of judicial decisions has interpreted as including the first importer from abroad—of the patented invention. The privilege conferred is the sole and exclusive right to work or make the invention; and the subject-matter of a valid grant is 'any manner of new manufacture within the realm' which is (a) not in use at the date of the grant, (b) not contrary to law or mischievous to the state, (c) not to the hurt of trade, or (d) not generally inconvenient. The next important measure in the history of our patent law is Lord Brougham's Act, 1835. At common law, letters-patent were wholly void for any defect in part, not being a mere clerical error which the Master of the Rolls could correct; and a patentee was liable to be deprived of his patent from the failure of some condition, such as want of novelty in a very trifling part of the invention. The Act of 1835 enabled a patentee to enter with the clerk of patents, by permission of the crown, signified by the fiat of the law officer, a disclaimer of any part of the title or a memorandum of any alteration therein, which upon being filed by the clerk of patents, and enrolled with the description of the patent, was deemed and taken to be part of the letters-patent in all courts whatever. A still more important change was introduced by the Patent Law Amendment Act, 1852. The policy of granting patents is not only to reward inventors, but to induce them to disclose their inventions to the public. Different means of attaining the latter object have been adopted at different stages in the history of our patent law. The earliest practice was to insert in the grant a proviso requiring the inventor and his assignee to take apprentices during the last seven years of the term, and to teach them 'the knowledge and mystery' of his invention. In the reign of Queen Anne the patentee was required within a certain period (usually six months) after obtaining his patent to enrol at one of the public record offices a specification or description of his invention, upon the accuracy and sufficiency of which the validity of his grant in great measure depended. This practice had several grave disadvantages. There were three offices in which specifications might be enrolled—the Enrolment Office, the Rolls Chapel, and the Petty Bag Office; in each of these offices a laborious search might have to be made before a particular specification could be discovered and inspected. Again, the interval of time which elapsed between the grant of a patent and the enrolment of the specification enabled a patentee first to obtain protection for what might be merely a crude idea, and then to work out its details, altering and modifying them at will, during the protected interval. The Patent Law Amendment Act of 1852, adopting a practice which was in force in several continental countries, and which was strongly recommended by most of the witnesses who gave evidence before the committees of 1829 and 1851, provided that a petition for the grant of letters-patent should be accompanied by a statement in writing, describing the nature of the invention which it was sought to patent; this statement was called the provisional specification. The effect of the procedure prescribed by the act was that a patentee might use his invention for six months without prejudice to his patent by that user, but he obtained no rights against the public until his patent had been sealed. The patentee was merely protected against the consequences of his own publication, and enabled to employ workmen and obtain machinery without the risk of being betrayed.
The existing law of patents depends upon the Statute of Monopolies, the Patents Acts, 1883-88, and the Patents Rules, 1890, made by the Board of Trade under statutory authority. The present procedure to obtain a patent is as follows: An application signed by the inventor himself, and accompanied by a 'provisional specification,' in which the nature of his invention is briefly and generally described, is lodged at the Patent Office. The application and specification are then referred by the comptroller-general, who is the official head of the department, to an examiner who ascertains and reports to him whether (1) the nature of the invention has been fairly described, (2) the application, specification, and drawings, if any, have been prepared in the prescribed manner, (3) the title selected by the applicant sufficiently indicates the subject-matter of the invention, and (4) the specification does not describe more than one invention. No preliminary examination as to the novelty of the invention is held. The comptroller may, however, refuse to grant a patent for any invention of which the use would, in his opinion, be contrary to law or morality, and from such refusal no appeal can be taken. If the examiner report against the applicant on any of the grounds mentioned above, the comptroller may require the application, specification, or drawings to be amended before he proceeds with the application. Against this decision the applicant may appeal to the law officer, whose judgment is final. If, however, the examiner report in the affirmative upon each of the issues submitted to him, the application is accepted. Within nine months—a period which the comptroller may on payment of the prescribed fee extend to ten months—from the date of his application the applicant must deposit at the Patent Office a complete specification, particularly describing the nature of the invention and the best method of carrying it out. If the examiner report that the complete specification (1) does not fairly describe the invention, (2) does not terminate with a distinct claim or claims, (3) claims more than one invention, or (4) varies materially from the provisional, the comptroller may refuse to accept it unless and until it has been amended to his satisfaction. From such a refusal the applicant may appeal as before to the law officer, whose decision is final. When the complete specification has been accepted it is printed and published, and the details of the applicant's invention are then for the first time thrown open to public inspection. The comptroller-general causes the fact of the acceptance to be advertised in the official journal of the Patent Office, and the patent is not granted until after the expiration of two months from the date of such advertisement. At any time within that period any person may oppose the grant on any one or more of the following grounds: (1) that the applicant had obtained the invention from the opponent or from some person of whom the opponent is the legal representative; (2) that the invention had been patented in this country on an application of prior date; (3) that the complete specification describes or claims an invention other than that described in the provisional, and that such other invention forms the subject of an application made by the opponent in the interval between the leaving of the provisional and the leaving of the complete specification. No other ground of opposition is recognised. The opposition is heard and determined by the comptroller-general, whose decision may be appealed against to the law officer. In the event of there being no opposition, or of the opposition proving unsuccessful, the patent is issued under the seal of the Patent Office and bears the date of the original application. The term of the patent is fourteen years from its date. The grant extends to the United Kingdom and the Isle of Man, but not to the Channel Islands or to any of the British possessions or colonies. Under the Act of 1883 a patent lapses at the end of four years unless a certificate of renewal has been obtained on payment of the prescribed fee. The taxes payable for keeping up a patent amount to £150. The specification or drawings relating to a patent may be amended by leave of the comptroller-general after advertising and hearing any opposition to the proposed amendment. No amendment will, however, be sanctioned the effect of which is materially to enlarge the scope of the invention originally claimed. The comptroller-general and probably the Master of the Rolls have power to correct merely clerical errors. If a patentee both fails to work his invention himself and refuses to permit other persons to do so, the Board of Trade may compel him to grant licenses upon reasonable terms.
The infringement of a patent may be restrained by injunction, and punished by damages awarded in an action at law. A patent will be revoked—or, as it is termed in Scotland, reduced—if it is proved to the satisfaction of the proper court to have been obtained by fraud or false suggestion on the part of the patentee, or to lack the essential requisites of novelty and utility.
A patentee is not compelled to mark articles made according to his invention as 'patented.' But any person who represents that an article sold by him is patented, when in fact no patent has been granted for the same, is liable on summary conviction to a fine not exceeding £5.
Prior to 1835 the term of a patent could only be extended by a special act of parliament (cf. Edmunds' Patents for Inventions, pp. 373-376). But the frequency of applications for statutory assistance suggested the propriety of framing some general measure for the extension or prolongation of letters-patent, and Lord Brougham's Act was passed with that view. Other enactments, of which the interest is now chiefly historic, followed; and section 25 of the Act of 1883 completed the legislation upon this subject. The judicial committee of the Privy-council has power to extend for a further period of seven, or in exceptional cases of fourteen, years the term of a patent which, although highly meritorious and useful, has not adequately remunerated the patentee, from circumstances beyond his control, during the original term. It is now the practice of the judicial committee to prolong letters-patent by ordering a new grant to be made for the extended term.
Patent Agents.—Before the Patent Law Amendment Act, 1852, only about 500 patents were taken out annually in England. The patent business of the country would not, therefore, support a separate profession; and the parliamentary reports of 1829 and 1851 throw a somewhat painful light on the proceedings of many of those persons who carried on the work of patent agents in connection with other callings. Under the Act of 1852, however, the number of patents annually obtained greatly increased; foreigners and British subjects abroad desired to patent their inventions more frequently than before, and consequently the work of the patent agent became a distinct profession. On the 12th of August 1882 an Institute of Patent Agents was incorporated under the Companies Acts, 1862 to 1880. The Patents Act, 1888 (sect. 1), created a Register of Patent Agents, on which every person who assumes the name of 'patent agent' after July 1, 1889, must be enrolled under a penalty not exceeding £20. The Register of Patent Agents Rules, issued by the Board of Trade, came into operation on 12th June 1889, and gave to the Institute of Patent Agents a practically complete control over the whole profession. A communication to a patent agent is not privileged from disclosure in a court of law, even although he be a solicitor.
The Patent Office.—All the formal, and much of the judicial, work connected with the grant of letters-patent for inventions is done at the Patent Office in Southampton Buildings, Chancery Lane, London. At the head of the whole department is an officer called the comptroller-general, who is appointed by, and responsible to, the Board of Trade, and is assisted by a staff of examiners, clerks, &c. In addition to his formal and judicial duties relating to applications, the comptroller attends to the Register of Patents, in which the names of patentees and notifications of all assignments and licenses must be entered, and prepares an annual report as to the work of the Patent Office, which is laid before both Houses of Parliament. The Patent Office contains a valuable free public library, which is ordinarily open from 10 A.M. to 10 P.M., and in which all the publications of the Patent Office—specifications, reports of cases, illustrated official journals, &c.—may be consulted.
Patents in the United States.—Before the Declaration of Independence patents were occasionally issued by the colonial governments; and the constitution of the United States expressly vested in congress powers 'to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.' The congress of 1790 passed an act regulating the issue of patents for inventions, requiring the would-be patentee to petition the Secretary of State, the Secretary of War, or the Attorney-general; with the approval of any two of these the description of the patent was certified by the Attorney-general, and the president directed the issuing of the patent. The patent was recorded in the office of the Secretary of State, and delivered to the patentee under the great seal of the United States. Under this law, which remained practically unchanged till 1836, patents were granted with little examination, and the responsibility of deciding whether the patentee had made out his case was left wholly to the courts—a system found to be inconvenient and unsatisfactory for the interests of the public. On occasion of a fire at the Patent Office, when many of the documents were destroyed, congress repealed former acts and established a new system, which remains in force till now. The general principles of the law are the same as in England, but the term for which patents are granted is seventeen years—longer than elsewhere. The Patent Office is attached to the department of the Secretary of the Interior. The commissioner, assistant-com- missioner, and three examiners-in-chief are appointed by the president, with the consent of the senate. The chief clerk, a staff of a hundred examiners (principal, first assistants, second assistants, third assistants), draughtsmen, copyists, attendants, &c. are nominated by the commissioner of patents and approved by the Secretary of the Interior. The office publishes pamphlets on The Patent Laws and Laws relating to the Registration of Trade-marks and Labels, and The Rules of Practice in the United States Patent Office, which may be had on application. But inventors are recommended to secure the assistance of 'patent lawyers,' who are a distinct branch of the legal profession. The minimum expense may be stated at $60; but difficulties and references to various authorities may greatly increase the outlay. The number of patents issued in the United States greatly exceeds that of any other country. In 1837–46 the number was 5019; in 1847–56 it was 12,578; in the decade 1877–86 it was 169,478; in the century ending 10th April 1890 nearly 437,000 grants were made.
The International Convention.—It has long been the desire of inventors and legislators to bring about an assimilation of the patent laws of the world. As early as 1851 a society called the 'Association of Patentees' included in their list of proposed reforms in the patent law 'international arrangements for a mutual recognition of the rights of inventors.' Adopting in substance the views of Sir H. Bessemer, Sir William Armstrong, and Mr C. W. Siemens, the Select Committee of 1872 recommended that 'Her Majesty's government be requested to inquire of foreign and colonial governments how far they are ready to concur in international arrangements' in relation to the proposed international patent law. In accordance with this recommendation Earl Kimberley, then Colonial Secretary, directed the governors of the British colonies to ascertain the state of colonial opinion upon the subject. At the same time our representatives abroad were required by Lord Granville to prepare succinct reports upon the patent laws of the countries to which they were severally accredited, and these reports were published and laid before parliament in 1873 (C—741). The inquiries thus held showed that colonial and foreign official opinion was in the main favourable to the proposed change, and also that, all divergencies notwithstanding, there existed in the patent laws of the world ample materials out of which an international patent system might eventually be created. The International Congress at Vienna in 1873 and the Paris Congress, organised during the Exhibition of 1878, carried the movement forward; and on 20th March 1883 an 'International Convention for the Protection of Industrial Property' was signed at Paris. The plenipotentiaries of the contracting parties exchanged ratifications on 6th June 1884, and the convention came into effective operation a month later. The original signatories were Belgium, Brazil, Spain, France, Guatemala, Italy, Holland, Portugal, Salvador, Servia, and Switzerland. The accession of Great Britain was delayed until special statutory power had been given to the crown to allow the ante-dating of patents granted under the convention. The adhesion of Great Britain to the convention took place on 17th March 1884, and was formally accepted on the 2d of April following. The United States, Norway, Turkey, Tunis, New Zealand, and other countries have subsequently joined the International Union. Germany is the most important European state that still holds aloof. The principal changes introduced into our patent system by this important treaty are these: (1) Formerly a patentee could not import into some of the states now comprised in the union articles manufactured according to his patent in this and other countries without forfeiture of his rights. Free importation of such articles without the penalty of forfeiture is now allowed. (2) An applicant for a patent in any one of the contracting states may obtain protection for the same invention here at any time within seven months from the date of his foreign application. The subsequent application is ante-dated to the date of the first application, and is consequently not defeated by prior publication or user in the protected interval. The working of this provision may be best explained by a simple illustration. A, a French inventor, applies for a patent in Paris on 1st June 1890. At any time within seven months from that date he may apply to the English Patent Office to protect the same invention which he is patenting in France, and the English application, and the patent granted thereunder, are dated back to the 1st of June. The result is that A may, for almost seven months after his French application, publicly use his invention in England with perfect safety. No one can say that the patent subsequently granted to him is bad for want of novelty, because the patent ultimately bears the date of the 1st of June, and thus protects the period during which he was using the invention in England.
In connection with the International Convention an international office or bureau has been established at Berne in Switzerland. Its expenses are defrayed by the governments of all the contracting states, and it publishes a monthly periodical entitled La Propriété Industrielle, and devoted to the interests of the union. The convention provides for conferences being held successively in one of the contracting states by delegates from the said states with a view to perfect the system of the union. The first meeting took place at Rome in April and May 1886. The number of applications at the English Patent Office for protection under the convention amounted to twenty-six in 1887 and to seventy-one in 1888.
In some countries, such as the United States of America, the Patent Office inquires strictly into the novelty and utility of every invention submitted to it for protection. In others, such as France and Turkey, there is no preliminary examination as to novelty or utility. Indeed, in France the patentee, if he refers to his title at all, is obliged to add the words sans garantie du gouvernement or their initial letters, S.G.D.G. In most European states a patentee is compelled to 'work' his invention within a certain time prescribed by law or limited in the grant; but this regulation or exploitation law, as it is called, is usually enforced in cases of voluntary and unjustifiable inaction alone. In the United States designs are patentable, apparently with a view to the encouragement of the decorative arts. In Switzerland processes apparently cannot be patented. Russian patent law imposes restrictions on the patenting of inventions of war.
See Carpmael's Patent Laws of the World (1885), with its supplements, published under the auspices of the Institute of Patent Agents; Lewis Edmunds' Law of Patents (1890); W. C. Robinson's Law of Patents (3 vols. 1890); the Reports of the Parliamentary Committees (1829-87); the Reports of the Commissioners of Patents (1852-84), and by the Comptroller-general since 1884. See also COPYRIGHT, MONOPOLY, TRADE-MARKS.