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PARLIAMENTARY REWARDS AND THE EVOLUTION OF THE PATENT SYSTEM

Published online by Cambridge University Press:  27 August 2015

Robert Burrell  and
Catherine Kelly
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Abstract

This article examines the impact on the patent system of rewards for innovation across the eighteenth and early nineteenth centuries. During this period, Parliament would regularly grant rewards to inventors, with many of these rewards being set out in legislation. This legislation provided Parliament with the opportunity to promote a model of state support for inventors: a model that made public disclosure of the invention a precondition for assistance. This had important implications for patent law, in particular, in helping to develop the role of the patent specification and the doctrine of sufficiency of disclosure. In this way, the reward system helped establish the framework under which the state would provide support for inventors. Simultaneously, however, the reward system created a space in which inventors would have to do more than meet the minimum requirement of public disclosure. Rewards allowed the state to distinguish between different classes of inventor and to make special provision for particularly worthy individuals. In this way, the reward system recognised the contribution of the “heroic inventor”, whilst leaving the core of the patent system undisturbed.

Keywords

patentsrewardspatent specificationpatent extensionsheroic inventor
Type
Articles
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The Cambridge Law Journal , Volume 74 , Issue 3 , November 2015 , pp. 423 - 449
Copyright
Copyright © Cambridge Law Journal and Contributors 2015 

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References

1 T. Webster, Reports and Notes of Cases on Letters Patent for Inventions, 1601–1843 (London 1844), v.

2 Burrell, R. and Kelly, C., “Public Rewards and Innovation Policy: Lessons from the Eighteenth and Early Nineteenth Centuries” (2014) 77 M.L.R. 858CrossRefGoogle Scholar.

3 (1623) 21 Jac. 1, c. 3, s. 6.

4 We deliberately avoid referring to “private Acts” throughout the remainder of this article. This is because eighteenth-century usage of the public/private act dichotomy does not map onto modern usage and many of the pieces of legislation with which we are concerned were in fact styled as public measures. See generally Innes, J., “The Local Acts of a National Parliament: Parliament's Role in Sanctioning Local Action in Eighteenth-Century Britain” (1998) 17 Parliamentary History 23CrossRefGoogle Scholar.

5 Journals of the House of Commons, 30 December 1692, 765.

6 G. Phillips, Seven Centuries of Light: The Tallow Chandlers Company (Cambridge 1999), 201–02. See also R. Monier Williams, The Tallow Chandlers of London: Vol. 3 – The Guild Catholic (London 1973), 90–104 (discussing the response of the guild to new lighting generally during this period).

7 See e.g. Abramson, V., “The Economic Bases of Patent Reform” (1948) 13 L.C.P. 339Google Scholar.

8 See in the UK, Patents Act 1977, ss. 14(3), 72(1)(c).

9 Hulme, E., “On the Consideration of the Patent Grant, Past and Present” (1897) 12 L.Q.R. 316Google Scholar; C. MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660–1800 (Cambridge 1988), 51; O. Bracha, “Owning Ideas: A History of Anglo-American Intellectual Property”, SJD thesis, Harvard Law School 2005, available at <www.utexas.edu/law/faculty/obracha/dissertation/>, 66–68.

10 See e.g. Davies, D. Seaborne, “Early History of the Patent Specification” (1934) 50 L.Q.R. 86Google Scholar; N. Davenport, The United Kingdom Patent System: A Brief History with Bibliography (Liverpool 1979), 63; S. Bottomley, The British Patent System and the Industrial Revolution, 1700–1852 (Cambridge 2014), 48.

11 Adams, J. and Averly, G., “The Patent Specification: The Role of Liardet v Johnson” (1986) 7 J.L.H. 156Google Scholar.

12 Macleod, Inventing the Industrial Revolution, p. 49.

13 Bottomley, British Patent System, pp. 48–49. In this regard, Bottomley seeks to draw support from Mario Biagioli's work. Taking the US as his case study, Biagioli ties the transformation of patents from privileges into property rights to the demise of political absolutism and the rise of the modern political subject. He posits that the emergence of the specification and the decline in the importance of the assessment of utility were important stages in this process. There is, however, nothing in Biagioli's account to suggest this process would have been anything other than gradual in the context of a society such as England, where the transformation in the political system took place over a protracted period. See Biagioli, M., “Patent Republic: Specifying Inventions, Constructing Authors and Rights” (2006) 73 Soc.Res. 1129CrossRefGoogle Scholar.

14 Ibid., at p. 90.

15 Providing the equivalent current value is complex. For example, if one takes this sum at 1800 (as representing more or less the mid-point in the system of parliamentary payments), commonly accepted methods of conversion produce a range of slightly more than £14,000,000 to considerably in excess of £800,000,000. For current purposes, however, the most useful comparator is that of equivalent “economic status” which in 2013 would equate to £206,800,000: <www.measuringworth.com>.

16 (1739) 5 Geo. II c. 8 and see Grub Street Journal, 13 April 1732 (noting that “A warrant hath been impressed from the Treasury to the Exchequer for the sum of £14,000 to be paid to Sir Thomas Lombe”).

17 “A brief State of the Case relating to the Machine erected at Derby for making Italian Organzine Silk, which was discover'd and brought into England, with the utmost Difficulty and Hazard, and at the Sole Expence of Sir Thomas Lombe” (Parliamentary Papers, undated); A Bill for Preserving and Encouraging a New Invention in England by Sir Thomas Lombe, and granting him a further Term of Years for the Sole Making and Using his Three Italian Engines (11 June 1731).

18 Oxford Dictionary of National Biography (Oxford 2004; online edition 2008).

19 See e.g. A. Plummer, The London Weaver's Company, 1600–1970 (London 1972), ch. 8.

20 “The Case of the Manufacturers of Woollen, Linnen, Mohair and Cotton Yarn”, Parliamentary Papers, 1732–1735.

21 “The Case of the Silk Throwers Company”, Parliamentary Papers, 1732–1735.

22 J. Brewer, The Sinews of Power: War, Money and the English State 1688–1783 (London 1989), ch. 8, in particular 183, 189. See also E. Charters, Disease, War and the Imperial State: The Welfare of British Troops during the Seven Years War, 1756–63 (Chicago 2014), 107 (exploring this concept in the context of army returns).

23 Cf. the position in France when even some years later it was thought to be enough as a condition for the grant of a reward that other potential users of the invention could access a model of an improved loom at a guild office: Hilaire-Pérez, L., “Technology as a Public Culture in the Eighteenth Century: The Artisans’ Legacy” (2007) 45 History of Science 135CrossRefGoogle Scholar.

24 Brewer, The Sinews of Power, p. 189.

25 J. Moxon, Mechanick Exercises that Or, The Doctrine of Handy-works, 3rd ed. (London 1703), iv–v.

26 Hilaire-Pérez, “Technology as a Public Culture”, p. 136.

27 See e.g. J. Mokyr, The Gifts of Athena: Historical Origins of the Knowledge Economy (Princeton 2005). Such claims are, however, controversial and within the rich and diverse literature on the Industrial Revolution we find other authors who argue that the drivers of industrial growth were quite different. To take but one example, for Hobsbawm the technological developments of the eighteenth century rested on the “application of simple ideas and devices, often of ideas available for centuries”. It was only once the UK had secured a vast market for its products in colonial territories by means of an aggressive military strategy that it made sense for entrepreneurs to invest in these technologies: E. Hobsbawm, Industry and Empire (Harmondsworth 1974), 60. Nevertheless, in contemporary accounts there seems to be a consensus that at least some attention needs to be given to the new ways in which technical information came to be shared and employed over the course of the eighteenth century.

28 Report from the Select Committee, p. 179.

29 For an illustration of the desire of eighteenth-century patent owners to preserve the greatest possible degree of secrecy, see L. Bently, “Patents and Trade Secrets in England: The Case of Newbery v James (1817)” in R. Dreyfuss and J. Ginsburg (eds.), Intellectual Property at the Edge: The Contested Contours of IP (Cambridge 2014).

30 The role of the specification in allowing broadly similar inventions to be differentiated from one another should be seen as merely one aspect of the “identification” function (cf. notes 12 and 13 above and accompanying text).

31 A. Pottage and B. Sherman, Figures of Invention: A History of Modern Patent Law (Cambridge 2010), ch. 3.

32 Journals of the House of Commons, 21 November 1692, 709 (summarising the petition of Craven Howard Esq.).

33 Bottomley, British Patent System, p. 91.

34 Oxford Dictionary of National Biography.

35 E. Impey and G. Parnell, The Tower of London: The Official Illustrated History (London 2000). On the origins of public access to the Tower, see in particular pp. 97–98.

36 The Fifth Session of the First Parliament of King George II, Histories and Proceedings, 140–45. This was clearly Parliament's intention. However, whether foreign traders were actually denied access to Lombe's models is rather more difficult to say, since the conditions of public access to parts of the Tower only began to be standardised in 1729 and hence there may still have been the possibility of securing additional access through the payment of a gratuity to the relevant guard or official: ibid., at p. 98.

37 Report from the Select Committee on the Law Relative to Patents for Inventions (PP 332), 12 June 1829, p. 170.

38 This characterisation of Parliament's role is now widely accepted. For detailed discussion, see e.g. P. Thomas, The House of Commons in the Nineteenth Century (Oxford 1971).

39 Bottomley, British Patent System, p. 49.

40 (1739) 12 Geo. II c. 23.

41 Issue 7815, 16 June 1739.

42 Journals of the House of Commons, 28 February 1755, 181–82.

43 Journals of the House of Commons, 14 April 1755, 281.

44 (1765) 5 Geo. III c. 20, s. 4.

45 For discussion of this aspect of the unreported judgment, see Hulme, E.W., “Privy Council Law and Practice of Letters Patent for Invention from the Restoration to 1794. Part II” (1917) 33 L.Q.R. 180Google Scholar, p. 192.

46 Journals of the House of Commons, 28 February 1772, 534.

47 Journals of the House of Commons, 6 April 1772, 661–64 (Report of the Committee); (1775) 50 Monthly Review 312.

48 This is true, for example, of the extensions granted to James Watt for his steam engine and David Hartley for his method of securing buildings against fire. Both ended up enjoying monopolies that lasted more than 30 years. See (1775) 15 Geo. III c. 61 and (1777) 17 Geo. III c. 6, respectively.

49 (1776) 16 Geo. III c. 18, s. 2 (requiring a new specification to be enrolled within four months).

50 (1775) 5 Geo. III c. 52, s. 2 (requiring a “true and just Specification of the Mixture and Proportions of the said Materials” to be enrolled within four months).

51 (1776) 16 Geo. III c. 29, ss. 3, 6.

52 (1778) 1 Web. Pat. Cas. 53; 1 Carp. Pat. Cas. 35.

53 Reproduced in J. Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, vol. 1 (Chapel Hill 1992), p. 754.

54 Adams and Averley, “The Patent Specification”.

55 Bottomley, British Patent System, p. 91.

56 Bently, “Patents and Trade Secrets in England”.

57 Adams and Averley, “The Patent Specification”, pp. 165–66.

58 J. Collier, An Essay on the Law of Patents for New Inventions (London 1803), 127.

59 (1785) 1 Web. Pat. Cas. 64; 1 Carp. Pat. Cas. 53.

60 W. Hands, The Law and Practice of Patents for Inventions (London 1808), 9.

61 Adams and Averley, “The Patent Specification”, p. 164.

62 Journals of the House of Lords, 20 March 1776, 602.

63 Morning Chronicle and London Advertiser, 2 April 1776.

64 Journals of the House of Lords, 28 March 1776, 621.

65 St. James's Chronicle or the British Evening Post, 21 February 1778: “the Jury … to the astonishment of a numerous concourse of people assembled on the occasion brought in their verdict for the plaintiff. And what is very remarkable, many counsel present, but not engaged in the cause, after hearing the facts, laid bets of two or three to one that the verdict would be in favour of the defendant.”

66 More specifically, the dominant justification for patent protection is normally said to be that it provides inventors with an incentive to invest in new technologies, but disclosure is understood to offer an important subsidiary public benefit and is a precondition for protection in every case. See e.g. Eisenberg, R., “Patents and the Progress of Science: Exclusive Rights and Experimental Use” (1989) 56 U.Chi.L.Rev. 1017CrossRefGoogle Scholar. See also V. Denicolò and L. Franzoni (2004) 23 Int.Rev.Law & Econ. 365 (arguing that disclosure alone is sufficient to provide an economic justification for the patent system).

67 W. Holdsworth, A History of English Law, vol. XI (London 1938), 427.

68 Bottomley, British Patent System, chs. 2 and 3.

69 C. MacLeod, Heroes of Invention: Technology, Liberalism and British Identity, 1750–1914 (Cambridge 2007).

70 On the scientific republic of letters, see J. Gascoigne, Science in the Service of Empire, Joseph Banks, the British State and the Uses of Science in the Age of Revolutions (Cambridge 1998).

71 G. Williams, “From Jenner to Wakefield: The Long Shadow of the Anti-Vaccination Movement”, Gresham College Lecture, 28 September 2011, full text available at <http://www.gresham.ac.uk/lectures-and-events/from-jenner-to-wakefield-the-long-shadow-of-the-anti-vaccination-movement>.

72 Report from the Committee on Dr. Jenner's petition, respecting his discovery of vaccine inoculation (1801–1802) (PP 75), 7.

73 Report from the Committee on Dr. C. Smyth's petition, respecting his discovery of nitrous fumigation (10 June 1802) (PP 114), 8.

74 (1807) 47 Geo III, c. 131 (of Local and Personal Acts), s. 5.

75 Here it might be noted that something approaching the modern notion of public money had been established in political discourse by this time. This is clearly reflected in the debate around the size of the reward to be paid to Jenner. As rhetorical devices, notions of public money, public finances and parliamentary consent may have helped give a greater degree of legitimacy to the tax burden in the UK than in other countries such as France, where the tax burden was actually considerably lower. See further P. Hudson, The Industrial Revolution (London 1992), 53.

76 House of Commons Debates, 15 March 1802, 203 (petition presented to the House by Admiral Berkeley).

77 Report on Mrs. Whitfield's Petition, 11 July 1814 (PP 309).

78 Hansard, House of Commons, 6 May 1814, cols. 1813–14.

79 Burrell and Kelly, “Public Rewards”.

80 The emergence of modern modes of government that could nevertheless accommodate other paradigms is one that finds strong support in Weber's account of the development of the state. For Weber this was exemplified in the legal context by the persistence of “empirical justice” (which allows for ad hoc “practical valuations”) alongside a “rational” interpretation of law (that rests on “strictly formal conceptions”): M. Weber, “Bureaucracy and Law” in H. Gerth and C.W. Mills (eds.), From Max Weber: Essays in Sociology (London 1970).

81 Lords S.O. No. 94 and see Hansard, House of Lords, 25 March 1801, cols. 1253–54 (Earl of Lauderdale proposing new Standing Order); Journals of the House of Lords, 28 March 1808, 516 (Order adopted).

82 See respectively London Gazette, 16185, 20 September 1808; London Gazette, 16293, 29 August 1809. The first of these announcements itself postdates the adoption of the Standing Order, but it seems reasonable to postulate that it took some time for the Order to come to the attention of petitioners.

83 In this respect, it should be noted that copyright law at the time still contained a reversionary right that at least in theory allowed authors of successful works the opportunity to negotiate for an improved deal for the second half of the copyright term. It is possible that at least some members of the Lords had this in mind when the Standing Order was introduced. For discussion of the history of the reversionary right in copyright law, see Bently, L. and Ginsburg, J., “‘The sole right shall return to the Author’: Anglo-American Authors’ Reversion Rights from the Statute of Anne to Contemporary U.S. Copyright” (2010) 25 Berkeley Tech.L.J. 1475Google Scholar.

84 Hansard, House of Commons, 6 May 1814, cols. 728–31.

85 See generally Dickinson, H.T., “George III and Parliament” (2011) 30 Parliamentary History 395CrossRefGoogle Scholar.

86 The Judicial Committee was established in 1833: (1833) 3 & 4 Will. IV c. 41. This Act confined the legal work of the Privy Council to those who were appropriately qualified. In practice this meant that extensions were now under the control of the judiciary, with Lord Lydhurst, Lord Brougham, Bosanquet J., Lushington J., and Knight-Bruce V.C. being particularly active during the early period. Consequently, we find Knight-Bruce V.C. hearing a request for an extension in Wright's Patent (1843) 1 Web. Pat. Cas. 736 and an application for the grant of an injunction in Muntz v Foster (1843) 2 Web. Pat. Cas. 92 within days of one another. This point is worth emphasising because there has been a tendency to present the courts and the Privy Council as being in conflict in the patent field, but this characterisation of the relationship can only hold, at best, during a much earlier period. See further Bracha, Owning Ideas, pp. 62–63 (arguing that the narrative of continuous struggle between the courts and the Privy Council is in any event flawed) and P. Howell, The Judicial Committee of the Privy Council 1833–1876 (Cambridge 1979) (on the foundation and early operation of the Judicial Committee generally).

87 (1835) 5 & 6 Will. IV c. 83, s. 4.

88 (1844) 7 & 8 Vict. c. 69. The impetus for this change came from a petition from the Earl of Dundonald for an extension via Act of Parliament for his patent for an improvement in steam machinery: Hansard, House of Lords, 16 February 1844, cols. 475–76.

89 Hansard, House of Lords, 3 June 1835, cols. 475–76.

90 Patent agents began to emerge as a separate profession around this time. See H. Dutton, The Patent System and Inventive Activity During the Industrial Revolution (Manchester 1984), 86–87.

91 A. Newton, Patent Law and Practice: Showing the Mode of Obtaining and Opposing Grants, Disclaimers, Confirmations, and Extensions of Patents (London 1879).

92 (1883) 46 & 47 Vict. c. 57, s. 25.

93 (1907) 7 Edw. VII c. 29, s. 18.

94 (1949) 12, 13 & 14 Geo. VI c. 87, s. 23. Moreover, even this is something of an oversimplification as the Act made separate provision for extensions where the patentee's ability to work the invention had been adversely impacted by the war.

95 This was true, for example, of the legislation in Victoria: An Act Concerning Letters Patent for Invention 1857, 20 Vict. No. 3, s. 23; Patents Act 1890, 54 Vict. No. 1123, s. 42.

96 Patents Act 1903 (Cth), s. 84.

97 Robinson's Patent (1918) 25 C.L.R. 116, 119, per Isaacs J.

98 (1839) 1 Web. Pat. Cas. 568, 569.

99 (1843) 1 Web. Pat. Cas. 737, 739.

100 (1843) 1 Web. Pat. Cas. 729, 733–34.

101 See e.g. Swaine's Patent (1837) 1 Web. Pat. Cas. 559 (invention result of a great deal of labour, care, and science; invention extremely useful in its effects and petitioner had sustained a loss); Dowton's Patent (1839) 1 Web. Pat. Cas. 565 (looking, inter alia, at the ingenuity of the invention and its benefits to the public); Kollman's Patent (1839) 1 Web. Pat. Cas. 564, 565 (Attorney General intervening in the case to note that loss arose from “circumstances beyond the control of the patentee”).

102 Morton's Patent Slip: Report from the Select Committee Appointed to Consider How Far It Is Expedient to Extend the Patent Granted for Morton's Slip, 13 April 1832 (PP 380).

103 Northey Rotary Engines Ltd.'s Patent (1950) 81 C.L.R. 332 (summarising the most recent UK authorities on point).

104 R. Godson, A Practical Treatise on the Law of Patents for Inventions and of Copyright, 2nd ed. (London 1844), 199.

105 (1838) 1 Web. Pat. Cas. 473, 476.

106 46 & 47 Vict. c. 57, s. 25.

107 This comes across clearly from Barbara Henry's careful historiography: B. Henry, “The Development of the Patent System in Britain, 1829–51”, PhD thesis, Queen's University Belfast 2012, Introduction, in particular 23–28.

108 P. Drahos, The Global Governance of Knowledge: Patent Offices and Their Clients (Cambridge 2010), 31–32 and ch. 11.