5 - Crystallisation of the categories

Summary

The crystallisation of patent law

When the 1829 Select Committee on Patents met to discuss the ways in which law and administration of letters patent for inventions could be improved, it encountered a number of difficulties: a fact reflected in the Select Committee's unusual decision to publish its evidence without making any recommendations. While the Committee was unable to reach any specific conclusions, one point on which it was able to agree was that patent law, if it can be called that at the time, was a mess. Indeed, while patents had been granted by the Crown for over two centuries it was said as late as 1835 that ‘there existed at present no Law of Patents’. Given that there was great uncertainty as to what could be patented and as to the purpose and requirements of the patent specification, this way of thinking is hardly surprising. The fact that what we now call patent law was at times subsumed with a Law of Arts and Manufacture, a Law of Form and even treated as a type of copy-right attests to the unsettled nature of the legal categories; to the fact that patent law, at least as we understand it today, did not yet exist.

Despite the uncertain and open nature of the law, by the 1850s there was a much clearer idea as to the nature of patent law, what its main elements were, and where its boundaries were to be drawn. While certain aspects of the law were yet to be formulated, the law then in existence bears a very close resemblance to present day patent law.

A number of different explanations can be given for the emergence of modern patent law over this period. In part it can be attributed to the fact that the early part of the nineteenth century was characterised by a growing concern with the state of arts and manufacture in Britain. As a reviewer of Charles Babbage's Reflexions on the Decline of Science in England, and on Some of its Causes wrote in 1830, the ‘return of the sword to its scabbard’ following the end of the Napoleonic wars seems ‘to have been the signal for one universal effort to recruit exhausted resources, to revive industry and civilisation, and to direct to their proper objects the genius and talent, which war had either exhausted in its services or repressed in its desolations’.