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.

107

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 governmental interest.

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.

 

THE IDEA OF INTELLECTUAL PROPERTY

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 most

108

of the lawyers who have discussed the matter [5].  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 [6].  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.

109

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 ;[7] per-

7. For 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 HAND 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 involved.]

HHC: [bracketed] displayed on page 111 of original

110

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.

 

THE ANCIENT BACKGROUND

1. Asia

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 feudalism [8].

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. [9] 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.

9 Authority 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 SULEIMAN 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 develop them.

111

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. [10]

 

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. [11]

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. [12]

Unfortunately his book was lost and his proposal was rapidly forgotten.  The most famous philosophers of Greece were strangely cool to it.

10. Authority. 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 Corona, 111-121.

12: Aristotle,  Politica 11. 3. 1267 h.

112

PLATO, 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. [13]

ARISTOTLE, 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.” [14]  He hardly included the industrial arts in this concession.

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 leaders

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 own writings.

14. Aristotle 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.

113

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. [15]

This society was particularly unlikely to grant patent monopolies.  Again, the monopoly institution was well known; [16] 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.” [117] 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 Hellenistic empires.

3. Rome.

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.

15. In 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 decisive.

16. For 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.

114

It had long been observed that the usual state monopolies were often failures. [18] 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 … [19]

Earlier versions of the same thought had condemned monopolies as “inequitable”. [20] 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 59.

20. 3 Inst.

115

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. [21] 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." [22] 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. [23] 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 ARISTOTLE and of their direct and indirect followers had prevailed in this respect.  Due to these teachings even the early traditions of syste-

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  realty.

23. Stolfi, p. 1-15.

116

-tic, competitive, industrial prize awards were forgotten.  In spite of MAECENAS there were few who renewed those early traditions.

 

MEDIEVAL NON-MONOPOLISTIC PRIVILEGES

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 and ARISTOTLE 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 Artisans

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. [24] Some of their contests were wide open to the public, in direct opposition to PLATO’S injunction.

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

24. For example, periodic prize awards were usual in Italian silk gilds; G. Canesirini. Arch. Stor. Ital.. N. S. vol. 6 II p. 9.

117

Northern France. [25] 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 professional architects.

3. Migration of the Artisans

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-

.25. 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

118

tiquity, and the westward return of Byzantine workers - during the Middle Ages. [26]

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 citizens… [27

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 KEMPE 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. [28] 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.

119

law was limited to some particular industry in which the Count, Duke or King was interested at the time.

4. Privileges and Protective Laws

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. [29]

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.  Either BORGHESANO or his son had apparently equipped this kind of mill with a water wheel drive, enlarged it in size, and improved it in other respects.

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.

120

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. [30]

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, [31] although they sent perseverant spies. [32] 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. [33]

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. [34]

5. Stagnation 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 or BOLOGNINO 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. 192-196.

32. U. Dorini, Statuti deli ‘arte di Por San Maria, .1934 p. 653.

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).

121

the decay of the art in the original center, Lucca, and the slowness of understanding and improvement in Florence and elsewhere.

For these reasons a splendid episode like that. of BORGRESANO and BOLOGNINO was the exception; stagnation and decay were still the rule, as in the early Middle Ages.

 

MEDIEVAL MONOPOLIES AND QUASI-PATENTS

1. Zeno’s Law

Throughout the Middle Ages, ZENO‘s law was in effect.  It was frequently re-enacted locally. [35] 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 PEACHY, which purported to give this merchant a monopoly for sweet wine, individually or for a group of people, disregarding the existing gild monopoly. [36]

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.” [37] 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 importers’ monopolies.

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.

122

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.

BOLOGNINO 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. [38] 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.

123

elsewhere in our country, which would or might be damaging to this mill in any manner, so long as this mill is workable and working. [39]

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: [40]

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. [41]  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. [42] 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. [43] 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 10.

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.

124

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. [44]

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. [45] 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 Republic.

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 Board.”

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 medieval countries.

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.

45. B. Cecchetii, Arch, Ven. 27 p. 331. 332 etc.; 29 p. 237, 283-292.

46. For details see my article in JPOS 1944 p. 714.

125

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 monopoly.

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 institution.

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.

 

INTELLECTUAL PROPERTY SANCTIONED BY ITALIAN GILDS

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. [47]

Here it was decreed by one of the major gilds that the creation of a new design gives rise, generally and automatically, to an exclusive right.

2. Florence 1474

In 1474 the Florentine woolen gild inserted a provision in its articles, saying:

It has been noted that certain fabricators of figured serge, by their own efforts, have invented designs and patterns for figured

47. H. Sieveking, jb. f. Ges.. V. & V., 1897  p. 101, 122. citing Manuscript VII 25 of the University Library at Genoa.

126

serge, and that many other fabricators of such material are trying by means of fraud and deceit to steal such patterns from said fabricators. [48]

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. [49] It may be presumed that the underlying feelings were much older; perhaps centuries older.

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.”

3. Effectiveness

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.

49. The provision was confirmed by the silk gild in 1580: Riezler p. 451.

127

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 Gilds

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. [50] 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.

128

acted as trade associations of basically capitalistic enterprises.

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. [51] 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. [52]

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).

52. For 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.]

HHC: [bracketed] displayed on page 130 of original

129

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. [53]

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 dormant idea.

 

INTELLECTUAL PROPERTY ELEMENTS IN THE FIRST PATENT SYSTEM

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.

130

inventor can obtain an exclusive privilege for ten years from the General Welfare Board of the Republic. [54].

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 industry.

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

54. This 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.

131

document. of 1469. [55] 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. [56]

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. 170, 177.

132

other devices, the patenting of which would have been considered illegal in the Middle Ages. [57]

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 IN THE COPYRIGHT SYSTEM

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.

133

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. [58]

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 censorship

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 printers. [59]

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

58. Kohler 1907, p. 31, 32; E. S. Rogers, Mich. Law Review 1903/9 p. 101. ‘

59. Kohler 1907 p. 35-39, 479-131; Stoifi p. 26; Mandich p. 201-203: W. S. Holdsworth, Yale Law Journal 1919/20 p. S41.

134

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. [60]

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 MANUT1US, 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.

 

THE SPREADING AND DEVELOPMENT OF THE INTELLECTUAL PROPERTY IDEA

This reception followed immediately, with almost explosive speed.

At the start of the sixteenth century patents and copyrights were practically unknown in the northern coun-

60. Kohler 1007 p. 39. 40: .Stolfi App. 13: Mandich p. 204; also see my article in JPOS 1944 p. 719. 720,

135

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. [61] Next, the number of monopoly grants to inventors increased rapidly. [62] 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. [63] 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

61. Monopoly 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.

62. Modern 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.

63. Examples 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.

136

and will mainly “induce” further inventive efforts. [64] 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. [65] 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. [66] Venice was “famous for her patents.” [67] 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. [68] Monopoly grants to inventors were no longer limited to

64. Examples 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.

65. The influence of GIACOMO ACONCIO in England may have been exaggerated by Hulme and others, as indicated by Davies 1932 p. 397.

66. See for instance Carr p. XXI, LV11:. Maitlaid; English Law and the Renaissance, 1901; L. Goldschmidt, Universal-Geschichte des flandelsrechts, 1891.

67. So a Venetian patent application of 1498, see Stahl p. 263.

68. The 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.]

HHC: [bracketed] displayed on page 138 of original

Bolding also added

137

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. [69] 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. [70]

By 1600 it had become unnecessary and unusual to justify patent grants to inventors by the formulas which had been used for some decades. [71] However, the ideas behind these formulas remained active.  This applies particularly to the intellectual property idea.

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.

71. The 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.

138

from quasi-patents - are justified by the creation of new concepts, not by the introduction of manufactures useful for the commonwealth. [72] 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. [73]

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. [74] I only wish to make the point that patents have two historic roots:  State policies and the idea of intellectual property.

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 and 186.

74. Zycha 1942 p. 304.

139

the system was successful.  In Italy and Germany it was practically forgotten. [76] In the rich Netherlands it. was largely forgotten and finally abolished.[76]  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. [77] 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 and MIRABEAU.  It was largely due to this support that the patent system became an international institution. [78] 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 p. 130-135.

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. 139

140