3. T. F.
Ordrsh, Antiquary 1885 p. 61, 62; A. A. Gomme, Patents of
Invention, 1946, p. 5. The article of Ordrsb was written
shortly after the anti-patent movement of the nineteenth
century. It would deserve more attention than it has received;
the majority views have been repeated too long. Basically they
merely reflect the claim of early royalty that its acts were of
its “special grace, certain knowledge, and mere motion.”
4. The main
investigations are those of F. Hofmann, Zeitschr. f. Industrie
Recht 1915 p. 85; R. Weldon, Mitt. d. d. Pat. Anw. 1934 p. 26;
Gutenberg-Jahrbuch 1935 p. 205; Deutsches Recht 1936 p. 160;
Beitr. z. TechnikGeschichte 1937 p. 107; Festschrift “50 Jahre
Deutsche Patent-Anwaltschaft”, 1950; G. Mandicb, JPOS 1948 p.
166 (originally 1936 in Riv. di Dir. Com.): J. Isore, Rev.
I-list. de Dr. Fr. et Etr. 1937 p. 94; H. Mueller, GRUR 1939 p.
936: G. Doorman, Patents for Inventions in the- Netherlands.
1942 (originally 1940 in Dutch): and A. Zycha, Zeitschr. d. Saw.
St. f. Rechtsgeschichte, Germ. Abt., 1940 p. 205; 1942 p. 295.
Venice, during the fifteenth century. It was then adopted in
Germany, France, the Netherlands and England in practically the
same form, during practically the same, short period between
1500 and 1550. This widespread, uniform reception of identical
patent forms, during one short period, indicates that a
:super-national driving force was at work, in addition to local
I have found further evidence that such was the case. More
specifically it appears that the force emanated from the idea of
intellectual property. No doubt it sounds surprising that this
supposedly modern idea had such early influence. Still more
surprising is the precise form of this influence. The idea was
first accepted by certain gilds. Under their apparent influence
it was approved, implicitly and sometimes expressly, by
legislators and administrative lawyers.
Before entering into details I wish to make entirely clear what
I mean when referring to the idea of intellectual property. I
do not mean a mere collective term for such institutions on
behalf of authors and inventors as exist in various laws. I
mean the idea that authors and inventor have inherent, exclusive
rights in their works and inventions; that such rights are not
created but only developed or limited by statutes on privileges,
patents and copyrights; and that such rights are not lost by the
mere publication of the work or invention, except when
explicitly limited in such manner by statutes.
It seems obvious that such a right - assuming its previous
existence due to custom, common law or other sources of law - is
lost when publication of the work or invention has been followed
by an extended period of “adverse possession” on the part of the
public. However, this important point has been overlooked by
of the lawyers who have discussed the matter . Unnecessary
difficulties and debates have resulted from this oversight.
The same feeling or conviction which supports the idea of
intellectual property has given rise to the more general rule
that property rights are created by the production of new
things. The philosophy of this rule, as applied to tangible
things, is no longer debated . It has survived the changes
from ancient to medieval and modern forms of economy. It
creates no serious problems. If the producer of a new thing has
received materials, tools or labor from others, the suppliers
have contractual rights, often secured by liens; but the
finished product is clearly owned by the producer, not by
suppliers, users, or the public. This applies even between
public bodies acting as producers, in more or less socialistic
systems. It is important to note that, if the producer chooses
to exhibit his product to the public - to publish it - nobody
holds that he abandons his property by this act.
5. One of the few exceptions is A. Osterrietb, Altes and Neues
zur Lehre vom Urheberrecht, 1892 p. 100 etc. Details of his
theory may be debatable but no good reason is apparent why his
basic theory should be rejected or disregarded. The history and
nature of the pertinent arguments appear mainly from J. Kohler,
lirheber-Recht, 1907; E. Riefler, Deutsches Urheberund
Frlinder-Recht, Vol. I, 1909; and N. Stahl, Propriete lit. et
art., 1916. Vol. I.
6. It was
philosophically debated between the Sabinians, who held:
Cuius materia, illius et res facta; and the Proculians who
answered: Eius res qui fecerit. About 150 A. D., the
debate was decided in favor of the Proculians by Gains,
Institutions II 79. Later some concessions were made to the
Sabinians, mainly to the disadvantage of artists working in
bronze; this was were criticized for instance by Plinius, Hist.
Nat. XXXIV 2, 3. Still later a bad misunderstanding arose. The
Proculians had called the creation of property a “natural mode
of acquisition” as distinguished from “derivative modes of
acquisition” like sale or inheritance. In the Middle Ages the
“natural acquisition” was confused with “acquisition by natural
justice,” a vague biblical concept. This has caused further
confusion in the modern analysis of intellectual property, while
the analysis of tangible property has long returned to the safe
ground of Gaius. See for instance W. Philips. Law of Patents,
1837 p. 4: “In respect to things that can be visibly and
exclusively possessed, the producer … is acknowledged by the
laws of nature to have established his right of property… But
the exclusive right to the use of a discovery in the arts must
originate in a conventional law… expressly passed or tacitly
recognized.” Similarly and still coarser: Robinson vol. 1 p.
37, 38 contradicting his own page 15 Note 3. There is no
legitimate difference between “laws of nature” and “conventional
law tacitly recognized.” The question is whether a
“conventional law” exists: and this is a question of historic
fact, not of theory.
It is equally important to note that, if a co-producer’s
contribution is minor, and does not amount to real production of
the thing as an economic-legal unit, no property right is
created by such contribution. For instance the mere dyeing of
cloth woven by others does not ordinarily justify a property
claim for the dyer. The line of actual demarcation is sometimes
debatable but the principle is clear.
It is also clear that the nature of the thing produced and of
the productive process affects the individual case. Important
laws, marginal to that of property by production, affect the
case of the farm tenant who raises grain or breeds cattle, that
of the artisan or industrialist who converts wool into cloth,
and again that of the artist, writer or inventor who converts
intellectual raw materials into new ideas. A specific feature
of the intellectual field is that the things produced, being
intangible, are indestructible by man. As a result they are
extremely numerous; their interrelation is complex; and special
care is required in determining where each of them begins and
ends as an economic-legal unit.
Application of these principles in the field of patents and
copyrights would lead to very definite results, in matters of
practical importance, such as the standard of patentability, or
various proposed patent reforms ; per-
instance: (A) The rule against property claims based on work of
minor significance for a new thing would strengthen the rule
that a valid patent requires more than a new and useful
structure or process. Some writers have urged quite seriously
that the requirement of inventiveness is a mere “ghost of the
law” (see for instance D. III. Cooper, JPOS 1941 p. 319; Fox p.
VIII etc.; J. Vojacek JPOS 1948 p. 407, 1950 p. 629). If this
be a “ghost,” it was not born in 1350 as assumed by these
writers, but at least 2000 years ago. For centuries. this
“ghost” had a lot of substance in the opinion of the people: see
note 73, below . It was invisible only to the lawyers of ELIZABETH’S
Privy Council, and to them only until the people had started to
revolt. (B) Abolition of the patent system (recommended for
instance by S. Petro, Chicago Law Review 1944/5 p. 80, 352 and
contemplated “with equanimity- by Judge LEARNED
and Justice FRANKFURTER
in Jungersen v, Ostby, 166 F(2d) 811, 335 U. S. 560) would fail
to change the substantive law of the system to any great extent,
due to the underlying intellectual property law. (C) The
constitutionality of a general rule subjecting all patents to
compulsory licenses (affirmed for instance by F. I. Schechter,
Virginia Law Review 1935/6 p. 237, with insufficient distinction
between the different forms of [compulsory
licenses) would be more questionable than it is now. So far the
opponents of compulsory licenses (like K. Fenning, Georgetown
Law Journal 1928 p. 109) have operated only with interpretations
of the patent clause. In view of the pre-existing.
extra-statutory rights of inventors. the Fifth Amendment is also
displayed on page 111 of original
haps even in the taxation of patent income. The main question
is whether the principles of general property law are
applicable, or whether current views are correct in assuming
that patents and copyrights are entirely based on written
statutes. The answer depends on facts which must be gathered
from various fields of history.
In the realms of ancient Asia, exclusive rights of authors and
inventors were unknown. Inherent, private, exclusive rights
were unthinkable and the granting of exclusive rights to authors
was unusual. It is true that the State had a monopoly power, but
the lending of such power was dictated by concepts of an archaic
This does not mean that authors and inventors were forgotten.
They were often held in high honor. Under the more enlightened
dynasties, rewards and incentives were granted with some
regularity. In countries as far apart as Persia and China,
periodic prize awards were given for unusual performance in the
arts and crafts. Among others, the early arts of Persian rugs
and Chinese silk were cultivated by such awards.  The ancient
and continued renown of these arts indicates that the
encouragement was effective.
8. H. S.
Maine, Ancient Law, 1870, p. 244-303; M. Rostovtrell, Hist. of
Ancient World. 1925. vol. I p. 143-136 etc.
for Asia Minor: Aristoxenus and Tbeophrastns, about 300 3. C..
quoted by Athenaeus. Deipnosophistae XII 511, 545 d. about 300
A. D. Authority for China: Lin lutaitg. The Wisdom of CONFUCIUS,
1938. p. 118-120. Particularly for Chinese silk: the report of
the Merchant. about 850 A. D.. ed. M. Reinacb, 1845. cited by E.
Pariset, Hist. de la Soie. Vol. 2. 1865. p. 101, 102. A new
edition of the report was published by G. Ferrand in 1922. In
this discussion we can disregard the primitive custom which led
to the “exclusive” use of certain patterns by different tribes
or clans. This custom tended to perpetuate designs. not to
One special type of prize award, in use from China to Persia and
beyond, contained an archaic, exclusive element. It was an
order to make the newly invented or improved article for the
King only; that is, a state monopoly occasioned by an invention
and coupled with an award to the inventor, giving him honorary
status as his Majesty’s supplier and vassal. Such orders are
kmown, for instance, in the early history of chinaware and other
oriental products. 
2. Ancient Greece
In ancient Greece, systematic awards were equally frequent.
Here they were generally more democratic.
As in the East, such awards were often occasioned by esthetic
rather than utilitarian performance. The prizes awarded by the
cities of Greece were hardly ever given to craftsmen, rarely to
scientists, much more readily to artists. Similar prizes were
given to winners of battles and of athletic games. 
The name of HIPPODAMUS
of Miletus should be remembered in the history of inventors’
privileges. This famous city builder, a contemporary of PERICLES,
wrote an outline of a general legal system, one of the first
such outlines known. His system was characterized by great
cutting down of punitive laws, and by amplification of laws whereunder
those who discovered anything for the good of the state
should-be honored. 
Unfortunately his book was lost and his proposal was rapidly
forgotten. The most famous philosophers of Greece were
strangely cool to it.
for Persia: Clearchus of Soli, about 320 B. C., quoted by
Atbenaeus. Deipn. X11 514 e, 529 d, 539 b. Authority for China:
E. Zimmerman, Chinesisches Purzellan, 1913. vol. I p. 23-26. A
very similar institution - nobility based on the exercise of the
ceramic art - appeared in medieval Venice and later in France
and elsewhere: see for instance E. Gerspach, L’Art de la
Vcrrerie. 1337, p. 148, 194.
11. See A.
Bneckh. Staatshatishaltung der Athener, 1886, Vol. 1 p. 270.
253. 284. 313 etc. An important source is Demosthenes. De
Politica 11. 3. 1267 h.
a young contemporary of this architect, took no interest in the
idea of broader prize awards. Indeed he took no serious
interest in any promotion of what is now called the useful arts.
He was expressly opposed to most of the fine arts. In his
ideal state there was no room for political or industrial
development; only for scientific research, and that only for
few. He held that every craftsman should exercise only one
craft, or even part of one craft only; for instance, not all of
carpentry but only the making of tables. His reason for this
strange view was metaphysical; he thought that in this manner
the artisan might come closer to an eternal “idea” of the goods
that he produced. 
in the next generation, stayed closer to the firm ground of
political and economical facts. It was he who reported the gist
of the Milesian’s plan of broadening the field of prize awards.
He discussed this plan, with critical remarks because of its
possible abuse in the legal and constitutional field, where he
definitely preferred stability to any development. He conceded
only incidentally that the plan had merits in the “arts and
sciences.”  He hardly included the industrial arts in this
The leading philosophers considered these arts as unimportant or
contemptible. In this their attitude differed radically from
the modern one, and from that of the oriental “barbarians.” No
doubt the work of these philosophers was very constructive for
the development of accurate, scientific thinking. However it
was destructive for any organized promotion of the useful arts.
A society where such attitudes were shown by the foremost
13. Plato. Res
Publica IV 421; similar: Leges VII 846; less sharply: Politicus
259. It is sometimes said that he knew and favored the gradual
division of labor and differentiation of the arts: so for
instance G. Glpfz, Ancient Greece at Work. 1926. Chapter 111 6.
1 can see no evidence for this belief in PLATO’S
loc. cit. The remaining literature on HIPPODAMUS, listed by H.
Diels, Fragmente. 1934 vol. I p. 3S9. throws no light on his
plan. That the plan was not limited to the points criticized by
ARISTOTLE is suggested
for instance by H. Onckcn. Staatsrecht des ARISTOTELES.
1870. I p. 218.
of public thought was not likely to follow the advice of HIPPODAMUS.
The advice was there, and was seriously debated, but it was
clearly rejected. 
This society was particularly unlikely to grant patent
monopolies. Again, the monopoly institution was well known;
 even monopolies of inventors, and their thought-provoking
or incentive effects were clearly understood. This is indicated
by the story about the semi-legendary Sybarites, who supposedly
gave monopolies to those of their cooks who invented a “peculiar
and excellent dish.”  The story was current in classic
times but it was merely a popular joke. Even if the story was
true, it was not taken seriously in the Greek cities or
In imperial Rome a further, profound change took place in the
thinking of the people, which made monopolies of inventors less
likely than ever. Monopolies became illegal.
Sometimes it is said that inventions were scarce in antiquity,
and that the reason lay in the prevailing slavery and manorial
economy: this view is mentioned for instance by Doorman p. 13.
There is probably some merit in it and it is probably connected
with the problem of the prevailing philosophy. However, it is
impossible to prove that invention was less frequent in
antiquity than later; and it is equally impossible to prove that
manorial economy or the like was less compatible with patents
than were the conditions of Italy during the Renaissance or of
America during the nineteenth century. In the last analysis the
basic philosophical and cultural attitudes of the people are
instance, Aristotle. Politica I II, 1259 a: The creation of
monopolies is “an art often practiced by cities when they are in
want of money.” Also see Borckh p. 696 etc.
17. “If one of
their confectioners or cooks invented any peculiar and excellent
dish no other artist was allowed to make this for a year, but he
alone who invented it was entitled to all the profit to be
derived from it for that time, in order that others might be
induced to labor at excelling in such pursuits.” Phylarchns.
about 300 B. C. quoted by Athenaeus Deipn. X II 521 c. d, about
300 A. D. which was discovered in 1922 by C. Cicborins. 118 Jh.
f. Nat. Oek. and Stat..p. 46 and frequently mentioned since
then; for instance JPOS 14 p. 348; 17 p. 444; 19 p. 35, 78: 27
p. 143: Doorman p. 12. About Sybaris which existed from 720 to
510 B. C., sec for instance I. S. Calloway. Syharis. 1950. The
story about the cooks implies. Deipn. XII 521 c that the
Sybarites took one year to prepare for their elaborate repasts.
It is also said. Deipn. XII 519 d. e. that the more excellent
cooks received golden crowns and other prizes usual in greek
cities. It seems that all this was merely in the spirit of
revelry and carousing and that no “law” was involved.
It had long been observed that the usual state monopolies were
often failures.  Now the understanding matured that the
required long-range planning can seldom be carried through for
any length of time with efficiency, equity, and success, and
that it is therefore soundest for a government to practice
self-restraint. This understanding crystallized in the classic
anti-monopoly law. The monopolies sanctioned by the state, as
well as those which individuals arrogated to themselves, were
basically outlawed. Emperor ZENO,
about 480 AD, proclaimed this law. It said:
No one shall exercise a monopoly over any material, whether by
his own authority or under that of an imperial rescript
heretofore or hereafter promulgated … 
Earlier versions of the same thought had condemned monopolies
as “inequitable”.  Now for the first time a constitutional
issue was raised.
The historic effect of ZENO’S law was
far-reaching. Until then, state monopolies had been created
freely. While their wisdom had been subject to debate, their
legality had been unquestioned and unquestionable. After ZENO,
high-level action was required for a legal monopoly. More
important, it became necessary to offer some definite excuse
when creating a new monopoly. New and unusual forms of
monopolies could no longer be created.
The known, traditional forms of monopolies were limited in
number. In substance they consisted of four types: direct state
monopolies; the trade monopolies of gilds; the exclusive rights
of property owners to their real estate or chattels; and the
negotiated, contractual monopolies of individuals, companies and
trading cities, in dealing with their contracting partners. It
was not usual to grant any exclusive rights or monopolies to
inventors or authors.
18. See for
instance Rostovtrefl, loc. cit.
19. Cod. IV
20. 3 Inst.
4. Artists & Authors
In Roman times an equally profound, differently directed change
began to take place in the rights of artists and authors.
Intellectual property was claimed perhaps not for the first
time, but with greatly increasing insistence.  This claim
would have been incomprehensible to the orient, and would have
sounded strange to the Greeks.
Even in Rome the development led only to a generalized
formulation of the concept and its very partial acceptance by
society. The only thing conceded to authors was the exclusive
right to decide whether, when and how to publish their works.
In the intellectual field “the right of possession continued
for the same time only that the act of possession lasted." 
This minimum protection was given continuously, except during
periods of extreme intolerance and inquisition.
Publication of a work terminated all exclusive rights of the
ancient author.  As stated by SYMMACHUS,
about the end of the Roman imperial period:
When your song has gone out once you have given up all rights; a
published work is free.
The same rule was expressed or implied by others. Of course
there was something distasteful in it: and several of the
writers who stated the rule did so with vagueness and
self-contradiction. Those who were dependent on honoraria
protested against the rule; so for instance VIRGIL
in an affair with the plagiarist BATILLUS.
No statute or decision gave relief. Lawyers were not ready to
entertain the notion of intellectual property. Society was not
even aware of the more modest proposal made by HIPPODAMUS four hundred
years before Virgil’s time. The teachings of PLATO
and of their direct and indirect followers had prevailed in this
respect. Due to these teachings even the early traditions of
21. I. Kohler,
Jhering’s Jahrbuch 18 N. F. VI p. 319.
22. To use a
term coined by Blackstone, Comment. I I 1, for primitive
23. Stolfi, p.
-tic, competitive, industrial prize awards were forgotten. In
spite of MAECENAS
there were few who renewed those early traditions.
1. Dark Ages
Roman civilization was destroyed by the invasions of northern
barbarians. The feeble claim of ancient authors, asking for
intellectual property, was drowned out for centuries.
During the centuries which followed, the influence of PLATO
remained active. As before, it was repugnant to any development
of the useful arts. It was even less constructive now, being
reduced to the most elementary teachings. Political thinking
had been impoverished by the physical destruction of books, by
the demonstrations of brute force, by dogmatism, intolerance and
intimidation. For the industrial arts, the Middle Ages were the
Dark Ages indeed. Once more, as in remote antiquity,
inspiration had to be derived from the orient.
2. Rise of the
This inspiration filtered into Europe through the seaports and
river areas which had been developed in antiquity: the regions
of Naples, Venice, Genoa; Amsterdam, Cologne, Bruges, Ypres,
Paris, and London.
The first new institutions for the promotion of the useful arts
grew up in the circles of the artisans themselves, where the
inactivating influence of philosophy was at a minimum. Some of
the gilds began, or perhaps continued, to hold their own prize
competitions.  Some of their contests were wide open to the
public, in direct opposition to PLATO’S
Well-documented histories of such competitions are preserved in
centers of the building art, mainly in Northern Italy and to
some extent in Flanders and
example, periodic prize awards were usual in Italian silk gilds;
G. Canesirini. Arch. Stor. Ital.. N. S. vol. 6 II p. 9.
Northern France.  These were the port and river areas where
ancient culture had seen its highest development and where the
traffic with the East remained most active. It was here that
new building styles were developed; the Romanesque in Italy and
the Gothic in the North.
The documents show how technical problems, encountered in the
evolution of the new forms and styles, were discussed in
building committees, financed and organized by the city
government, either feudal or mercantile. When a serious
question was encountered, it was referred to the public. Prizes
were offered. Those who presented models could obtain
reimbursement of their cost. The models or drawings were
examined by technical commissions. Final decisions were made by
civil authorities, and the work was then executed by
3. Migration of the
Since the work on major churches, town halls, gild halls and
fortifications continued over centuries, the public interest
gradually awakened to a sufficient extent to cause civic action
toward promotion of the more backward arts.
In the beginning, such action was clumsy. Attempts were made to
keep local “secrets” from spreading abroad, and to learn as much
as possible of the “secrets” of others.
It was the attempt to learn from others which gave rise to
constructive development. Elaborate arrangements were required
to finance and protect the foreign masters, and to pacify
adverse local interests.
Some cases of mass migration of artisans are famous; for
instance the eastward transplantation of Roman workers into the
Byzantine empire at the end of an-
I have cited some Italian examples, Osiris 1950, p. 457. For
France etc. see Viollet-Le-Duc, Dict. Arch., vol. I p. 112,
113, and M. S. Briggs. The Architect in History. 1927, p. 71,
113-115. For a similar competition in Athens. 443 B. C.,
compare A. H. Smith in R. I. B. A. Journal, Dec. 18. 1926
tiquity, and the westward return of Byzantine workers - during
the Middle Ages. 
Starting about 1200 AD, detailed documents are preserved,
relating to such migrations. These are among the first links in
the chain of documents leading to the modern patent laws.
Standard forms developed in these documents at an early time.
In many of them it is declared, by the community giving asylum,
that persons skilled in certain arts
have come to our town and continue to come daily, where they
hope they may stay quietly and safely and exercise their art and
trade; and they have begun to exercise and teach such arts...
whereby great honor and gain will come to our community and its
Such hopes and endeavors were sometimes encouraged by the
granting of privileges, such as financial aid, tax reduction,
protection from foreign persecutors, etc. More often, it is
true, local inertia or opposition prevailed.
Sometimes a group of exiled or enterprising artisans was led by
an outstanding individual, like the famous wool weaver JOHN
of Flanders, who was called to England by Edward III. In such
cases the grant of an individual privilege to the leader was
sometimes followed by a more general decree or law, promising
aid or subvention on a broader and more continuous scale.
These broader, more continuous laws resembled those which had
been known in parts of ancient Asia, and which had been
unsuccessfully proposed for ancient Europe by HIPPODAMUS.
Examples of such laws are known from the Netherlands, about
1275; from Venice, about 1320; and from England, about 1337.
 In each case, however, the
26. Most of the facts are recorded by L. A. Muratori, Ant. Ital.
Diss. 25, De textrino. A popular restatement is given for
instance by W. F. Leggett. The Story of Silk, 1949.
27. So a decree of Bologna, 1315; similarly one of Florence.
1314; both reported by G. Livi, Arch. Stor. Ital. 4th series.
vol. 7 (1881) p. 29. References to similar statutes are given
by R. Davidsobn, Zeitschrift fuer die gesamte Staatsissenschaft.
1928 p. 242. 243.
28. See Doorman p. II, 12: G. Montico/o, Capitolari delle Arti
Veneziane, 1896-1914, vol. 1 p. 216, 218; Hulme 1894, 1896.
law was limited to some particular industry in which the Count,
Duke or King was interested at the time.
4. Privileges and
In the history of some arts, privileges and protective laws
played an important and constructive part. As a typical example
we may briefly consider the story of the silk twist of Bologna,
one of the great inventions of history. 
About 1272 BORGRESANO
the Silkmaker, also known as the Twist Builder, brought the
secret or a ‘‘new twist” from Lucca to Bologna, his new home.
He built the first mill on a channel near the city. His son
and successor BOLOGNINO
later on built the second mill on a channel within the city.
or his son had apparently equipped this kind of mill with a
water wheel drive, enlarged it in size, and improved it in other
Competing, hand-driven silk twisting “mills” of lower capacity
and efficiency existed in nearby Modena and in Lucca. They fell
into disrepute and disrepair.
In 1341 the city of Bologna approved the petition of BOLOGNINO,
for the erection of his new mill. The document states
29. It is so
classified for instance by C. Field. JPOS 1949 p. 495. No
illustration of the invention is known. An old illustration of
the earlier machine as used in Lucca is reproduced by E.
Lazzareschi, Lucca, 1931. p. 68. It shows a ring-shaped creel
or bobbin-support which seems to have about 20 feet diameter and
12 feet height. At the bottom there is a ring of vertical
paying-off bobbins for raw silk filaments. Apparently this
contains 16 groups of 6 bobbins each. Above each group of 6
bobbins there is one horizontal receiver spool. Filament guides
are interposed. Each receiver spool has a pinwheel at one end.
‘The pins are in mesh with a large horizontal crown gear,
rotating on a central vertical shaft inside the creel. The
teeth of this crown gear engage the pins gradually, to avoid
jerking of the filaments. An upper crown gear is also shown: it
seems there are two superposed systems of bobbins and spools
providing a total of 32 spools. The crown gears are turned by a
man who walks between their spokes. According to F. M. Feldhaus.
Encycl. of Social Sciences. 1933. vol. 10 p. 19 the machine at
Bologna had 100 to 120 spindles driven by a water wheel and
receiving the filaments directly as they came from the cocoons;
not from paying-off bobbins. This would explain the success of
Bologna: the capacity of the machine would have been tripled or
quadrupled and the quality of the thread improved by utilisation
of the natural gum. It is pertinent to note that in
BORGFIESANO’S time some kind of filature “mill” appeared also in
Modena as F Flown by a 1327 document printed by .A. L. Muratori,
Antiq. Ital., Diss. 30.
that he operates the art and trade of silk in Bologna and has
operated it for a long time already, and that he now wishes to
build in Bologna, in a certain house… a mill or filature or
twist for silk, at the channel, over the water running therein
and without obstruction to such water. 
The channel had been constructed during the 12th century. A
location on this channel was the modest privilege that BOLOGNINO wanted and
obtained “as a special favor.” He paid a yearly rent for the
permit. There was nothing exclusive about it.
The improved machines bad excellent results. They pulled and
twisted filaments of raw silk over hundreds of spindles, and
produced very good threads.
The commercial success was enormous. The importation of
oriental thread faded into the background; so did the local
production by unravelling of woven silk and by manual twisting.
To some extent this success was due to the fact that the secret
was kept in Bologna. The silk-makers of Florence and other
cities were unable to break it for several centuries, 
although they sent perseverant spies.  More important: the
new art was learned by the artisans within the district of
Bologna. In due course hundreds of the twist machines were
built and operated in the city. 
About the end of the sixteenth century these machines spread
over the remainder of Northern Italy, contributing decisively to
that amount of wealth and productivity that remained in the
area. At the start of the eighteenth century they came to
England, where they gave strong impulses to the so-called
Industrial Revolution. 
and decay still the rule
Few inventions had such success. It must be realized that this
success was due only in part to the inventions made by BORGRESANO
and protected by the city of Bologna. To a large part this
success was due to
30. Livi (see Note 27).
31. V. Rondot, L’art de sole, vol. I. 1835, p. 74; Leggett p.
32. U. Dorini, Statuti deli ‘arte di Por San Maria, .1934 p.
33. L. Frati, La Vita privata di Bologna. 1928, p. 26, 185.
34. Rondot p. 477, 478. Hulme 1917 p. 186. Also see Doorman p.
82, 106. 185 (patents K5..G90, 11144).
the decay of the art in the original center, Lucca, and the
slowness of understanding and improvement in Florence and
For these reasons a splendid episode like that. of BORGRESANO
was the exception; stagnation and decay were still the rule, as
in the early Middle Ages.
1. Zeno’s Law
Throughout the Middle Ages, ZENO‘s law was in effect.
It was frequently re-enacted locally.  While traditional
monopolies, such as those of the gilds, were well recognized,
attempted monopoly grants to individuals were clearly illegal
and were likely to be invalidated by the Courts.
So for instance the grant of EDWARD
III to JOHN
which purported to give this merchant a monopoly for sweet wine,
individually or for a group of people, disregarding the existing
gild monopoly. 
Infractions of this kind were obviously unable to establish a
new monopoly tradition.
On rare occasions a monopoly was granted to a party who
introduced a new manufacture. For instance, a 15 year monopoly
was granted in 1236, by the city of Bordeaux, then occupied by
the English, to BONAFUSUS,
a fabricator of cloth who proposed to weave “after the Flemish,
French or English manner.”  Of course there was more moral
justification for such a grant than for that to PEACHY. However, according
to the then established law the grant was just as illegal.
Historically it was just as untypical. It was unable, by
itself, to establish a new tradition in favor of inventor’s’ or
35. For instance in England: 6 Henry III: 25 Edward III; 13
Richard II: 5/6 Edward IV; also 21 Jac. 1. the “Statute of
Monopolies.” Several of these are cited for instance in
Standard Oil v. U. S.. 221 U. S. I. For the Continent see for
instance J. Strider. Studien. 1925 p. 201 etc.
36. Cited in Darcy v. Allin, II Coke R. 84 b, the “Case of
Monopolies.” For details see Churchill p. 275, 276.
37. Melday 1937 p. 110.
2. Quasi-Patent Exceptions in Mining, Forests & Rivers
In one special field such a new tradition was formed, in spite
of all legal and philosophical difficulties. This was the field
of installations connected with mining, with the forests, and
with the rivers, channels etc. Activities in this field came
under the legal and direct monopoly of the state. Under the
shelter of this basic, well-recognized monopoly the state could
make secondary grants to individuals, exclusively or otherwise.
received a non-exclusive grant in this field: a permit to use
certain water power. I am now referring to such permits,
privileges or grants which gave an exclusive right, a monopoly,
to the grantee.
In the prevailing theory about the origin of patents various
grants are simply called “privileges.” I will distinguish
certain grants as “quasi-patents.” They differed from such
grants as BOLOGNINO’s
by an expressed or implied exclusive feature, and from that of BONAFUSUS
by the feature that they were perfectly legal under ZENO’S
law. They differed from modern patents in that they were
limited to operations connected with mining, water, etc., and
not limited to new inventions. Basically they were special
building permits. Historically they were undoubtedly important
as forerunners of modern patents. A typical quasi-patent, with
express recital of the monopolistic feature, may he found in a
privilege given by the Duke of Saxony in 1398. It protected the
introduction of papermaking, the art invented in China about 100
A. D., which had come to Toledo about 1000 A. D., to Herault
about 1200, and to Nuremberg in 1390.  The document of 1398
declares that it is given to certain parties who
have newly started building a paper mill downstream of the
monastery at Chemnitz… We have given them a particular favor and
grace, and let it be known by these letters that henceforth we
shall not and will not allow or permit the building or making of
any other or new mill, upstream or downstream or
38. Doorman p. 62: G. V. Chandler, JPOS vol. 3 p. 457.
elsewhere in our country, which would or might be damaging to
this mill in any manner, so long as this mill is workable and
Water power was required for the rag-beaters of paper mills as
known at that time. This power was legally controlled by the
Duke, “upstream or downstream or else-where.” He acted within
his traditional rights in forbidding the use of such power to
anybody; and it was legally a mere incident that he limited the
prohibition to those who “might be damaging to this mill.’’
Examples of quasi-patents can be. found in fair numbers,
throughout the period from which economic documents are
preserved in numbers at all. Perhaps the institution was even
used in antiquity. Some forms of it had similarity with some of
the ancient oriental privileges for inventors: 
In Germany and Eastern Europe such documents were found, dated
1315, 1378, 1379, 1404 etc. They conveyed exclusive, local
privileges for the operation of specific mining or smelting
devices.  In France a closely related type of privilege,
with express or implied monopoly of the grantee, was issued for
the establishment of glass furnaces in forests owned by the
Crown; for instance in 1292, 1338, 1390 and 1448.  In
England at least an occasional exclusive privilege of similar
type was granted in 1449, this time for the installation of
certain types of colored glass windows in public buildings. 
The legal power supporting the grant rested on the general
control of the state over the buildings. Similarly in Florence
a monopoly was granted for a new type of barge or ship,
39. I owe the
German text to a private communication of Dr. Meldau. The
document is also mentioned by J. Folkc, 1 Neues Archiv fuer
Saechsische Geschichte p. 131.
40. See note
41. Zycha 1940
p. 21; 216; also see Strieder p. 30-55 etc.
42 See for
instance Gerspach p. 181. 215, 229, 239: B. Filial:. L’art de
terre chez les Poitevins. 1864 p. 199: J. Houdoy. Hist. de la
Ceramique Lilloise. 1869 p. 2-4. The significance of these
privileges for the history of patents is mentioned for instance
by Huhne 1S94.
43. Doorman p.
12: Gomme p. 6. About the general development of stained-glass
see mainly Viollet-Le-Duce vol. 9 p. 373-461. About later
English glass patents see Hulme, Antiquary 1894 p. 210. 259:
1895 p. 68. 102,134.
in 1421. The granting power rested on the government’s control
over rivers. Other inventions of the same man -the famous BRUNELLESCHI
- were rewarded by relatively conventional prizes in cash. 
The most developed set of quasi-patents is preserved in the
archives of Venice. They start here before 1200 and are very
numerous in the next few centuries.  They relate largely to
dredges, wells, flour mills and other water-controlling or
water-utilizing plants; installations vital for the welfare of
this waterbound community. Monopolies were often stipulated,
sometimes implied; and it was often clear that the grant was
given in consideration of an invention newly introduced into the
The control of waterways, and of other matters of economic
concern for Venice, was in the hands of a General Welfare Board.
It was this board which issued the quasi-patents. It also
controlled the occasional grants of prize awards for technical
improvements within its jurisdiction. Such rewards were paid
from a special fund, pecunia gratiarum. All these grants
were given upon a test of the new improvement, which was called
experientia and was conducted by the General Welfare
The procedure of this Board, probably based on the more modest
test procedures of medieval gilds, was an important forerunner
of modern patent examination. It was more refined than the
patent procedures of some modern countries, such as France. The
techniques of Venetian administration were constantly developed,
under the influence of the numerous countries where Venetian
traders had friends and business acquaintances. The
institutions of the -republic had a long, unbroken life; they
reached a higher degree of perfection than was known in other
However, even in Venice the medieval quasi-patents were limited
to machines erected on state-controlled
44. Mandich p.
170. For details see my articles in JPOS 1946 p. 109 and Osiris
1950 p. 457.
Cecchetii, Arch, Ven. 27 p. 331. 332 etc.; 29 p. 237, 283-292.
details see my article in JPOS 1944 p. 714.
grounds, because ZENO’S
law was in effect. They were not limited to new inventions,
because state monopoly operations were numerous and continuous
and new inventions were not always at hand. Even when new
invention was present, it was not that element but the state’s
control over the waters etc. which supported the quasi-patent
Nevertheless it was a historic effect of quasi-patents, granted
in industrialized regions like Venice and Saxony, that
“monopolies for inventions” gradually became a familiar
The extent of the region where this institution was customary,
for instance about 1400, is presently unknown. It does not seem
that all of England, or all of Germany or France, used or even
knew the institution. An impulse from abroad was required
before a modern patent system appeared in these regions.
Actually such an impulse came, as we will .see now. It came
from a side unconnected with the privilege and quasi-patent
policies of the slates.
1. Genoa 1432
In 1432 the Gild of silk manufacturers in Genoa adopted general
articles. These articles contained a proviso saying:
If anyone of said gild has had some pattern or figure designed,
no one else shall have such figure or pattern worked. 
Here it was decreed by one of the major gilds that the creation
of a new design gives rise, generally and automatically, to an
2. Florence 1474
In 1474 the Florentine woolen gild inserted a provision in its
It has been noted that certain fabricators of figured serge, by
their own efforts, have invented designs and patterns for
Sieveking, jb. f. Ges.. V. & V., 1897 p. 101, 122. citing
Manuscript VII 25 of the University Library at Genoa.
serge, and that many other fabricators of such material are
trying by means of fraud and deceit to steal such patterns from
said fabricators. 
Such “stealing” was penalized. As in the case of the Genoa silk
provision, the “patterns” in question were intangible designs,
incorporated in instruction schedules for the weavers operating
the looms of the gild.
The Florentine wool provision as cited was copied from a
provision of the silk makers of the same city. The date of the
Florentine silk provision is unknown; only so much is certain
that it was adopted before 1474.  It may be presumed that
the underlying feelings were much older; perhaps centuries
It will be noted that the Florentine provision protected
fabricators who “by their own efforts” had “invented” a new
design, while the Genoese rule was for a gild member who “has
had some pattern or figure designed.”
For the history of European textile design, the work of these
gilds was epoch-making. In this essay, esthetic qualities of
design patterns will better be disregarded, but it is pertinent
to note economic factors. The designs protected by the gild
provisions cited were revolutionary in this respect. The
“repeat” of the patterns was greatly enlarged in size and
refined in detail. Heavy investments were required for the
basic layouts, the instruction schedules, and the large,
versatile looms. It was a basic function of the gild rules
quoted to protect such investments.
The protection was effective. Silk weaving became the foremost
industry of Genoa and Florence. These cities, previously noted
for other merchandise, became the foremost silk-weaving centers
of the Western world, rapidly overtaking Persia, Greece, Sicily
and the first north-
48, A.. Doren.
Florentiner Wollentucb-lndustrie. 1901 p. 386, citing Vol. 54
fol. 57 of the Deliberations of the Woolen Gild.
provision was confirmed by the silk gild in 1580: Riezler p.
Italian center, Lucca. Together with Bologna, a center of raw
material, they maintained at least part of the prosperity of
Italy, during the turbulent centuries which followed. They lost
this position only two hundred to three hundred years later; and
we will see that they lost it to a community which had fully and
expressly accepted their intellectual property ideas.
4. Varying Character of
For the history of social and legal institutions these ideas
were just as important as for the history of the art and of the
region. We will see presently what effect they had upon the
transformation of quasi-patents into modern patents. For the
moment it may be desirable to clarify the character of the gilds
which adopted the rules of 1432 and 1474.
These gilds, of course, were still immersed in a psychology of
largely medieval origin. Their articles were still full of
“regulations” trying to safeguard qualities of “true and legal”
products. More modern rules, like those I have quoted, were
still extremely rare; in fact they became even less frequent
with the gradual progress of state control over the gilds.
It has often been pointed out that gilds were the arch-enemies
of invention and inventors.  There is much truth in this
statement, but exceptions of historic significance must be
recognized. Over the centuries and in the different countries,
the gilds differed greatly in organization and rules. Some were
merely instruments of rigid state policies, mainly during times
of state absolutism, like the early Middle Ages and the early
modern times; others reflected an active life and technical
progress of the industry. Some fostered simple brotherly love
among the members, or various degrees of socialization; others
50. See mainly
A. Renouard, Traite des Brevets, 1825 p. 56-145, the classic
description of social resistance to inventions. Hulme 1917
shows by case histories, the mechanism of formal gild opposition
against patent applications and patents. Also see Davies 1932;
Fox p. 41, 42: Doorman p. 13, 1.1; Isore p. 99, 100: Mandich p.
167; Meldau 1950. etc.
acted as trade associations of basically capitalistic
Most of the gilds controlling the more refined arts restrained
the mutual enticing away of helpers, and theft of tools or
goods. As these gilds became more experienced, the articles
became more specific.  They developed the minimum standards
of fair competition, which later on were slowly understood by
state courts and legislators and which are now in legal force
everywhere. The gild rules sanctioning an industrial or
intellectual property can be viewed as part of this development
: a part of the Law Merchant.
More specifically, the gild rules sanctioning industrial
property can be viewed as outgrowth of a basic gild principle
which required “unity of work.” Each product was supposed to
come from one producer. Originally and recurrently this
principle served to insure the producer’s undivided
responsibility for so-called true and legal work. However,
gradually the notion was developed in the minds of the producers
that value as well as responsibility lies in individual
craftsmanship. It is known that this development gave rise
to the modern trade mark right. Obviously a similar feeling led
to the modern design patent right, in such centers of design as
Genoa and Florence. 
51. About such
articles in general see for instance M. Rostovtzell, Social and
Ec. Hist. of Hellenistic World, 1941, p. 302-304; same, Social
and Ec. Hist. of Roman Empire. 1926. p. 133, 168, 169, 379, 380,
434 etc.; P. S. Leicht, Operai Artigiani Agricoltori, 1946 p. 4,
31-33, 50 etc.:, E. Martin St.-Lion, Hist. des Corp. de Métiers,
1909, p. 436 etc.; M. Weider, Recht der Deutschen
Kaufmannsgilden, 1931, p. 429-436; IV. J. Ashley, Introduction
to English Ec. Hist., 1931. vol. 1 p. 90 etc. For the detailed
development of such articles, reference must be made to the
actual gild documents. See for instance: J. Nicole, Livre du
Prefet, 1894 Ch. VI 3, VIII 10 (Silk workers of Constantinople,
about 1000. A.D.): R. Lespinasse, Livre des Métiers, 1879, p.
52, 68, 76 etc. and same, Métiers et Corp. de Paris, 1897, vol.
2 p. 166-179, vol. 3 p. 7-12, 23-36, 52-61, ,182-198 (silk
workers, embroiderers, tailors etc. of Paris, 1250-1600); G.
Monticolo, Capitolari delle Arti Veneziane, 1896-1914. vol. 1 p.
13, 30, 40, 115, 122, vol. 2 p. 61-88, 363 etc. (goldsmiths,
tailors, painters, glassmakers etc. of Venice, 1200-1300).
typical rules on “unity of work” see M. de Gailbord-Bancel. Les
anciennes corporations de métiers et la lutte contre la fraude,
1913 p. 47-49: also Lespinasse 1897 Vol. 3 p. 53 (“no one shall
weave a piece of cloth for which another has prepared the loom,”
1281); Monticolo vol. 2 p. 673 (“if one of the gild has started
a painting of his own, no one of the gild
[shall insert himself into the making of the work,” 1300?
1436). About trademarks see F. J. Scbecbter, Historic
Foundations of the Law relating to Trade Marks. 1925, mainly p.
38-79, 101-121; 1. Kohler, Warenzeichen- Neill, 1910, p. 3-33.]
displayed on page 130 of original
It may also be noted that some gilds were cognizant of the
tradition of quasi-patents, and imitated it, as shown by
individual monopolies which they either issued themselves or
supported before the state authorities, on behalf of individual
members. Examples are known from Florence, 1377 and 1409 and
from French and Dutch towns later on. 
Historically the most important single instance of opposition to
patents was the gild-sponsored Case of Monopolies in England, at
the end of ELIZABETH’S
reign; and no doubt there were thousands of minor cases of such
opposition, and only very few cases of gild action for patents
or patent-like institutions. However, actions of historic
importance must be weighed, not only counted. The forces of
individualism were active in the more developed phases of gild
economy. Some of the great gild merchants of the Renaissance
supported the ancient idea of intellectual property. In so
doing, they gave the first actual life to this previously
1. Gild Origins
The ideas of industrial and intellectual property were not
limited to Genoa and Florence.
In Venice it was enacted, about or shortly before the time of
the industrial property articles of Genoa:
If somebody invents any machine or process to speed up silk-
making or to improve it, and if the idea is actually useful, the
53. Some facts
supporting this statement, can be noted in Hulme 1896 p. 150.
1900 p. 47; Stolfi p. 177, ISO; Riezler p. 450-454; Strieder p.
143, 187, and my articles in JPOS 1944 p. 731 and 1946 p. 127.
Additional supporting facts can be found if the histories of
the various arts are searched in detail: see for instance J. M.
Guiflrey,, Hist. de la Tapisserie, 1886 p. 12: E. .Muentz.
Tapisserie, p. 193. The published literature, which is
enormous, has hardly been skimmed by the historians of legal
institutions. I do not believe that a deeper study would
reverse the judgment of Renouard (Note 50. above), but it would
probably clarify many obscure details.
inventor can obtain an exclusive privilege for ten years from
the General Welfare Board of the Republic. .
Here we see how the developed idea of “unity of work” generated
mechanical patent rights as well as design patent rights and
trade mark rights. The term “process to improve silkmaking” no
doubt included the use of new, artistic weaving pattern designs.
This was now placed on the same plane with new “machines.” It
is certain that individual trademark rights were much earlier
and it is probable that individual design patent rights were at
least somewhat earlier; but whatever the sequence may have been
it seems obvious that the Venetian statute was passed under the
influence of the same kind of merchants who developed the
parallel gild articles in Genoa and Florence, in the same
The text. quoted was a statute of the state, not an internal
gild regulation. In Venice the gilds were powerless to grant or
allow monopolies by action of their own. This, accordingly,
was the first modern patent statute. It was apparently enacted
in response to ideas prevailing in gild circles, which were
influenced by the ideas of industrial and intellectual property.
In the beginning this statute applied only to the silk
industry, but it was soon extended to all other crafts, by
general usage. This fact is noted in a Venetian patent
important text is reported by C. A. Marin, Storia Civile e
Politica del Commercio dei Veneziant, 1800. vol. 5 p. 256. 158.
No exact date is given but it is implied that the law was
enacted during the 13th or 14th century. Marin is not a model
of accuracy, but it is improbable that he mistook the general
patent law of 1474 for a law passed before 1400, limited to
silk, and expressed in different terms. R. Braglio d’A iono.
Venetianische Seiden-Industrie. 1893. p. 44, 45 quotes Marin and
assumes that the law was enacted in the 14th century. It may
also be noted that Vellor Sandi, Principi di Storia Civile della
Repubbhca di Venezia. 17751772, Vol. I p. 754 says that the
great mass of Venetian silk regulations were enacted (by the
General Welfare Board) between 1390 and 1410. Also see above
Note 28 about an earlier type of Venetian laws for the
improvement of arts, in use during the early part of the 14th
century. It would be worth while to search for further
information about the law reported by Marin. I have been unable
to consult: L. Ciucci. L’arte della seta in Lucca. 1930: B.
Cecchetlti. Dell’ introduzione dell’arte seta in Venezia, 1866:
E. Lai;areschi. L’arte della seta in Lucca. 1930: P. Pieri,
Intorno alla Storia dell’arte della seta in Firenze. 1927.
document. of 1469.  It seems, accordingly, that the first
patent system developed in Venice, shortly after 1400.
It is significant that quasi-patents were most developed in this
republic. It is equally significant that the silk patent law
came when the idea of intellectual property was gaining
approval. The conclusion seems justified that it was this
ancient, newly vitalized idea which expanded the medieval
tradition of quasi-patents into the first modern patent system.
2. Venice 1474
In 1474 the Venetian patent system was reorganized - not
regulated for the first time as so far assumed - by a new,
general statute. The preamble used formulas well known from
earlier Italian acts which had given collective privileges to
alien artisans: reciting the blessings of peace, hospitality and
resulting prosperity. The new statue continued:
Every person who shall build any new and ingenious device in
this city, not previously made in our Commonwealth, shall give
notice of it to our General Welfare Board when it has been
reduced to perfection so that it can be used and operated; it
being forbidden to every other person in any of our territories
and towns to make any device conforming with and similar to said
one, without the consent and license of the author. 
It concluded with detail provisions, mainly about the
enforcement of the monopoly so granted or acknowledged.
Extensive use was made of this law. The yearly average number
of patents issued by Venice was more than tripled during the
next fifty years. Patents for mills, dredges, etc., (the old
subjects of quasi-patents) remained in the lead. There was a
parallel increase in the number of patents for textiles, tools,
boilers, printing presses and
35 Printed for
instance by Stolfi App. I, English translation in my article in
JPOS 1944 p. 750.
36. Mandich p.
other devices, the patenting of which would have been considered
illegal in the Middle Ages. 
3. Inherent right
It was rather clearly implied in the two Venetian patent laws
that inventors have an inherent right to patent protection, not
merely an inconclusive hope for a “grant.” The statute said
that inventors “can obtain” exclusive status; “ it being
forbidden” to copy their inventions for the term of 10 years.
These formulas differ basically from those of the medieval
quasi-patents issued by any European government. It seems
obvious that the intellectual property idea was active when the
two statutes were adopted.
In the administration of the two statutes, it is true, no
cognizance was taken of this ancient idea. The General Welfare
Board not only continued applying the same kind of test or
experientia that had been usual for earlier quasi-patents;
it also gave the same name to the more modern patents: matters
of grace, gratia. Incidentally the expression “grant by the
state” is used even now, in America, where it is more obsolete
than it was in Venice about 1400.
INTELLECTUAL PROPERTY ELEMENTS
1. Publisher’s property
The earliest beginnings of copyrights have been traced to
Bologna and Paris, the seats of the oldest and foremost
universities of the Middle Ages. Handwritten books were
industrially produced in these centers, according to the ancient
system of reading a manuscript out
57. Mandich p.
208-214, with additions noted on p. 207, shows about 30 Venetian
patents from 1440 to 1500 and about 100 from then to 1550. A
further article of Mandich, covering the time after 1550, is in
preparation. I understand that the number of patents issued
between 1550 and 1600 was well in excess of 100. On a per
capita basis this may approach the present American figure.
During each of these periods about three quarter of the total
number of patents consisted in grants for improved flour mills,
saw mills, dredges, wells, pumps, mining appliances etc.: that
is, improvements in the field of the earlier quasi-patents.
loud and having it recorded by a number of workers
simultaneously. In the very earliest gild documents relating to
this operation, shortly after 1200, a primitive beginning of
copyright ideas can be noted. Not only did the gilds of
stationers and booksellers have the usual collective monopolies
for their towns; at least some of them also gave a monopoly for
the mass-production of any work - either new or ancient - to the
master who had obtained an order for it. 
The underlying idea had similarity with that of the Genoese silk
producers. An intangible property was protected. It. was not
the author’s property, created by the composition of a new work;
it was the publisher’s property, created by the dictating and
copying operation. As in Genoa, only a little step was required
to arrive at the protection of the creative author and inventor.
2. Combination with
When typography was reinvented, about the middle of the
fifteenth century, monopolies similar to those of the individual
producers of handwritten books were claimed and obtained by the
In bureaucratic Venice they were obtained from the state
government. The patent system was then in existence; the
printer’s monopolies were simply a special kind of patents.
However it was understood, about 1500, that there is a
difference between printers’ patents for improved printing
tools; printers’ design patents for new designs of types; and
copyrights for complete sets of composition as printed.
This latter variety, printers’ copyrights, was regulated by a
special law in 1517. This law confirmed the tradition that the
printer of a book could claim an exclusive right, but it limited
the claim to newly printed - not newly written - works. This
rudimentary copyright system was rapidly copied by all European
nations; not so much on
1907, p. 31, 32; E. S. Rogers, Mich. Law Review 1903/9 p. 101. ‘
1907 p. 35-39, 479-131; Stoifi p. 26; Mandich p. 201-203: W. S.
Holdsworth, Yale Law Journal 1919/20 p. S41.
account of its economic merit but in view of the censorship
features which could be combined therewith. In most countries
this system stayed in effect for several centuries.
3. Author’s rights
In Venice, the system was reformed again in 1545. A further law
was passed, requiring the “consent” of the “author” of a new
work, for the creation of a printer’s copyright. 
It is obvious from this law that the intellectual property
motive was still active in the legislation of Venice, as about
1400 and in 1474.
This legislation was eminently successful. For a long time,
authors went more readily to Venice than to any other city, in
their search for publishers. This preference was caused by the
copyright tradition at least as much as by excellence of paper
stock and typography. Some of the best-known printers of
Venice, like ALDUS
were noted for the rapidity and volume of their work more than
for artistic perfection. They poured a veritable flood of books
over all countries of Europe. The older book centers like Paris
and Bologna moved down to second place.
Practically all of the Venetian books carried the printer’s
devise and the author’s copyright, or privilege as it was
called. Both institutions became familiar to readers and
authors everywhere. They became independent driving forces for
the reception of the individual monopoly idea.
This reception followed immediately, with almost explosive
At the start of the sixteenth century patents and copyrights
were practically unknown in the northern coun-
1007 p. 39. 40: .Stolfi App. 13: Mandich p. 204; also see my
article in JPOS 1944 p. 719. 720,
tries. At best there was an occasional quasi-patent for mining
machinery, water wheels or different mills. Different forms were
used for these grants.
Now, during the first part of the sixteenth century, a series of
parallel developments took place everywhere. First, monopoly
grants to explorers made their appearance, followed by those to
publishers and printers.  Next, the number of monopoly
grants to inventors increased rapidly.  Their scope was
expanded widely; it was no longer restricted to improvements
utilizing the royal waters or mines or castles. Finally and
most significantly, it now became usual to recite certain
formulas in justification of the monopoly grant.
One of these formulas was that, in view of the inventor’s labors
and expenditures, it seemed “equitable” to give or secure an
exclusive right to him.  This obviously reflected the same
feeling that was behind the Genoese and Florentine gild articles
of the previous century.
Another formula was that the granting of exclusive rights to
inventors will “promote” the national welfare
grants to explorers were made for instance in England, under the
strong influence of Venetians. Carr p. XXVII-XXXVIII cites
examples of 1496,1502, 1553, and 1575. For early monopoly
grants to publishers and printers, from 1490 on, see for
instance Riefler p. 202-206; 398, 399; Stolfi p. 31-87.
patents or patent applications began to turn up, among the
quasi-patents, in the following years: VENICE (Mandich p. 1/2
and above notes 54, 57): In and before 1440. GERMAN EMPIRE
(Meldau1936 etc.): 1529 (?). 1531 (?), 1540, 1545, then about 50
patents until 1600. The suggestions came largely from cities
like Strassburg and Augsburg (Hoffmann etc.) Parallel grants
were also made by the more powerful states like Austria and
Saxony, but not apparently in very large numbers, in spite of
established quasi-patent traditions. FRANCE (Isore: also see my
article in JPOS 1944 p. 722): 1536, 1551; then about 30 patents
until 1600, without patents to importers. NETHERLANDS (Doorman
p. 8I-!00): about 80 patents from 1560 to 1600; also parallel
grants in the provinces. ENGLAND (Hulme 1896, 1900; Davies 1932
p. 396; Churchill p. 278: Gamine p. 3): 1537, 1545, 1552, 1557;
then about 55 patents to 1600, including illegal grants to
favorites of the Queen.
occur in the following patents: Venice 1495, 1509, 1513: Mandich
p. 184; German Empire 1545, 1551: Melldau 1934. 1936 p. 160;
various German states 1555-1561: Hofmann p. 91-98, 110;
Netherlands about 1570: Doorman p. 18, 21: England 1569 and
later: Davies 1934. p. 98, 99. Other examples occur in
copyrights, for instance in Florence 1563; Kohler 1907 p. 483.
and will mainly “induce” further inventive efforts.  This
obviously reflected a motive of ancient and medieval times, but
it was only now that the formula found its way into patent
documents of the northern countries. The motive was old but it
became more conscious.
The combination of the two formulas in the practice of the
different nations, and sometimes in one single patent document,
expressed the same spirit that had been immanent in the two
Venetian patent statutes. The expansion of this spirit can be
explained simply, without any strained theories about the
influence of individuals.  The process was obviously similar
to that whereby other doctrines of the Law Merchant were
received from the more developed regions, mainly from Italy,
about the same time.  Venice was “famous for her patents.”
 The rulers of the northern countries were receptive to
ideas of “inducing” progress; mainly in fields like ordnance and
explosives, in addition to the customary fields of
quasi-patents. Artists, artisans and sometimes even gilds were
receptive to the feeling that supported intellectual property;
this led to patent applications for textiles, dyes, boilers,
furnaces and the like. The undercurrent of popular opinion
which brought these new types of patents was just as effective
as was, the more superficial current of government policies; and
the two currents now ran parallel.
The result was that a patent system’ almost identical with that
of Venice grew up everywhere, before 1600.  Monopoly grants
to inventors were no longer limited to
from German states 1502-1570: Hoffmann p. 90-102; from England
1561 and later: Davies 1934 p: 98. For Venice see mainly the
statute of 1474, cited in full by Mandich.p.176.
influence of GIACOMO ACONCIO in England may have been
exaggerated by Hulme and others, as indicated by Davies 1932 p.
66. See for
instance Carr p. XXI, LV11:. Maitlaid; English Law and the
Renaissance, 1901; L. Goldschmidt, Universal-Geschichte des
67. So a
Venetian patent application of 1498, see Stahl p. 263.
salient features of similarity can be listed as follows. (A)
Test procedure (experimentia) in the early stages;
Mandich p. 172-175; Isore p. 113, 122; Hoffman p. 116; Doorman
p. 22, 23; Hulme 1896, p. 146, etc., 1900 p. 45 etc.; Davies
1934 p. 100, 101, 268, 269. (B) Gradual development
[of written and published
specifications instead of the physical test. between 1500
and 1700: Mandich p. 187: Isore p. 108, 112-114, 124: Hoffmann
p. 116: Meldau 1934. 1936 p. 162; Doorman p. 22-26; Hulme 1897,
1917 p. 64. 194. 195; Davies 1934 p. 87-95, 260-273. (C)
Objections of gilds and individuals: Mandich p. 186: Isore
p. 103. 113, 120 etc.; Hulme 1900, 1917: Davies 1932 p. 406-413.
(D) Patent enforcement by penalty-damages and sequestration
of infringing machines: Mandich p. 192. 193; Isore p. 114, 115:
Hoffmann p. 116, 117; Doorman p. 29. 30; Fox p. 131, 132.
(E) After initial doubts (see my article in JPOS 1944 p.
717), patents were transferable like other property:
Mandich p. 191: Isore p. 109, 110; Hoffmann p. 113: Zycba 19401
p. 230; Doorman p. 22: Carr p. LX I. (F) Crude forms of
interference procedure: Mandich p. 194: Hulme 1917. (G)
Crude forms of patents of addition: Mandich p. 182: Hulme
1896 p. 148, 1900 p. 46, 48. (H) Occasional working
obligations after the original test of operability: Mandich
p. 194, 195: Isore p. 111, 112, 116; Hoffmann p. 114, 115;
Meldau 1936 p. 163: Doorman p. 26-28, 31; Carr p. LIX; also
(confused) Davies 1934 p. 99-106, 268-271. There was only one
important feature of dissimilarity. and it was practically
unavoidable. It related to the government fees and taxes. See
Zycha 1940 p. 232: Doorman p. 13; Davies 1934 p. 108. 109, etc.]
displayed on page 138 of original
Bolding also added
the regions of royal mines or waters. Applicants residing in
the industrial cities began to urge the grant of patents at
different Courts. Some of the Courts, even at former centers of
quasi-patents, already began to resist.  However, for some
decades in central Europe, and for centuries elsewhere, the
forces of resistance were minor. Patents to inventors became a
matter of established custom. 
By 1600 it had become unnecessary and unusual to justify patent
grants to inventors by the formulas which had been used for some
decades.  However, the ideas behind these formulas remained
active. This applies particularly to the intellectual property
For instance, it was gradually understood everywhere, about
1600, that patent monopolies - as distinguished
69. A good
example of 1556 is fully reported by Hoffmann p. 90-93.
70. So mainly
in the German Empire. see Meldau1936 p. 160. citing a document
of 1551. Also see Doorman p. 101 (G 58). For Venice compare
Mandich p. 174. 175, with examples of 1469 and 1472. .1t is
true that the English and French patents recited that the
sovereign granted them as a matter of “special grace” etc. Such
formulas were also used in Venetian and German patents: in fact
they are still used in certain European patents. and the
American forms of “grant” are not very different.
formula that it is “equitable” not to give the fruits of the
inventor’s “labors” to the public at once was gradually
forgotten. Plain reference to the inventor’s “labors” was still
made occasionally, but even such reference became rare. This
development can be noted in patents granted by German states
between 1561 and 1570. Hoffmann p. 99-104: also in England.
Davies 1934 p. 99. A similar development can he observed for
instance in Florence about 1567: see Kohler 1907 p. 484, 485 and
my article in JPOS 1946 p. 130-135.
from quasi-patents - are justified by the creation of new
concepts, not by the introduction of manufactures useful for the
commonwealth.  In other words, the creation of new
intellectual property became decisive for private monopoly
rights, instead of the public benefits derived from the mere
expansion of industry. Patents were transformed from industrial
property into intellectual property; a process which is not
quite finished as yet, in some countries.
More specifically, it was gradually understood everywhere that
there is no intellectual property without an intellectual
creation substantially revamping the intellectual raw materials;
no valid patent without an improvement of considerable inventive
merit.. As early as 1474 it was enacted in Venice that a new
and ingenious device was required for a patent (nuovo et
ingegnoso artificio). In England it was even thought, for
some time, that a basic “manufacture” must be present. Later it
was conceded, again, that new improvements on old manufactures
may be sufficient. However it was clear, everywhere, that a
patent monopoly - as distinguished from a quasi-patent -
required novelty and inventive merit. The forms in which the
requirement was expressed were not always as clear as in 1474
but the idea was clear. 
I do not deny that concepts of public interest were and remain
among the motivating forces for the “granting” of patents. The
public interest was prominent mainly in the talks and writings
of Mercantilism.  I only wish to make the point that patents
have two historic roots: State policies and the idea of
The further development of the patent system was very different
in the different countries, for reasons extraneous to this
essay. In England and the American colonies
72. See mainly
Doorman p. e0-165. where the rise of the novelty principle is
shown by the notation “v, n.” in connection with the different
grants. Also see for inftance Isori p. 107: Hoffmann p. 111.
73. See :Mandich
p. 177; !sari p. 106. 122: Hoffmann p. 115. 116; Davies 1934 p.
96-109. Also see the numerous rejected patent applications
cited by Doorman and by Hulme 1917, mainly p. 66. 67, 69. 182
74. Zycha 1942
the system was successful. In Italy and Germany it was
practically forgotten.  In the rich Netherlands it. was
largely forgotten and finally abolished. In France the
system came very close to permanent, ignominious abolishment,
at. the time of the revolution of 1789.
The basic trouble of the continental patent systems was not that
the state and patent territories were too small, as is sometimes
assumed.  The trouble was that the internal and external
policies of the different countries were inefficient. In
England, this was largely remedied between 1600 and 1700; in
France only after 1775; in other countries, practically never.
In France, where the inefficiencies and scandals of internal
administration became most evident after 1775,.the patent system
survived only by virtue of the intellectual property idea. This
idea was active in the silk industry of France about 1700 as it
had been in that of Italy about 1400. It gained the support of
men like DIDEROT
It was largely due to this support that the patent system
became an international institution.  It was demonstrated
that the endurance of a system for the promotion of progress in
the arts, as well as the original creation of such a system,
required more than government-sponsored maxims; it required
mainly the public approval of intellectual property. Patents
and copyrights are based on this approval, not merely on written
statutes in legal books.
76. Meldau1936 lists the following numbers for the German
Empire: 1550-1600, 50 patents: 1600-1650. 18 patents: 1650-1700.
10 patents; 17001750, 12 patents, 1750-1800, 4 patents. About
Italy no statistics are presently known except Mandich data on
Venetian patents until 1550, see Note 77, above. I have noted a
few pertinent facts about the development in Florence. JPOS 1946
76. Doorman JPOS 1948 p. 225.
77 For instance Fox p. 26-30.
78 For details see my article in JPOS 1944 p. 728 to end.