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Frank D. Prager History of Intellectual Property From 1545 to 1787 Journal of the Patent Office Society 26 (11) November 1944, 711-760. |
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The Republic of Venice [9] was the dominating sea power of the world from the year 1000 to 1500, roughly speaking. She had started in obscurity, about 500; had grown by fishery, and later by commerce; acquired the Adriatic; established trading rights and colonies, by contracts with the Saracens, during the crusades; joined the Franks in occupying the Byzantine Empire; preserved most of her vast possessions in bloody wars with Genoa; and finally occupied a great part of the rich plains and towns of northern Italy. About 1400, she largely monopolized the trade between Europe and the rest of the then known world. At that time, and for about hundred-fifty years thereafter, her power and wealth was great. A pictorial record of it is preserved in the paintings of the Bellinis, Carpaccio, Palma Vecchio and Titian. Industrially, the Venice of the Renaissance was leading in the fields of shipbuilding, glassware, lace, and book-printing. The government of the republic was, for almost a thousand years, in the 6. Robinson vol. 1 p. 13-15 (full text); E. W. Hulme, 16 L. Q. R. p. 52-56 (discussion); Wm. H. Price, The English Patents of Monopoly, 1906, p. 135-141 (discussion). 7. Art. 1 sec. 8 par. 8. 8. K. Penning, 11 JPOS 438. 9. H. F. Brown, Venice, 1895; W. C. Hazlitt, Hist. of the Ven. Rep., 1860; P. Molmenti, Hist. of Venice, transl. by H. F. Brown, 1906-1908; S. Romanin, Storia Documentata di Venezia, 1853-1861. 712 hands of an aristocrat minority, excluding but generally not exploiting the people. All this sank into oblivion, gradually, after the discovery of the sea route to the East, around the Cape of Good Hope. The memory of Venice was even more deeply obliterated after the colonization and rise of America. Previously, however, Venice had left a definite imprint on the political, legal and cultural institutions of Europe. In Venice as throughout medieval Europe, most of commerce and the arts was dominated by guilds [10]. A guild was a group of masters maintaining a monopoly over their trade [11]. They effected this by fixing prices and standards; trading collectively with other groups, including the taxing powers; defending their trade against masters elsewhere, and against laborers and journeymen everywhere; and providing some security for aged and disabled members of the guild. In early times, the social security function had been well in the foreground. Later on, the regulation of prices, standards and wages became the main function of the guilds. This line of development was approximately the same in Venice as in all other countries, but reached a mature stage at an early time. Furthermore, in Venice like most other states, other than England, the guilds were gradually degraded to state-supervised, administrative agencies. Complete state control was established in Alexandria about 100 B. C.; in Constantinople about 800 A. D.; in Venice about 1300 ; and in France about 1650. Even when fully controlled, the guilds were often in sharp conflicts with the state. Above all, the problem of foreigners was contested. Like England [12], the Republic of Venice invited strangers at an early time [13]. About 1350, citizenship was thrown open to all who had resided 10. Ashley, Introduction to English Economic History, 1923, Vol. 2, p. 67-123 and Literature cited; M. St.-Leon, Hist. des corp. de métiers, 1922; G. Monticolo, I capitolari delle arte Veneziane, 1896-1914; Romanin, vol. I p. 61; vol. 2 p. 389-391. 11. H. See, Economical and Social Conditions in France, 1927, p. 131. 12. Hulme, 12 L. Q. R. p. 142, 143. 13. Molmenti vol. I p. 104, 120; Romanin vol. I p. 122. 713 in Venice a certain number of years [14]; a very wise and unusual law. The guilds, on the other hand, were always opposed to strangers. The State attempted to promote the arts in a number of ways, in addition to encouraging the entry of foreigners, and regardless of the general policy which allowed and even forced the guilds to remain stationary. As early as 1332, Venice maintained a special privilege fund, as shown by a document of that year [15], reciting a payment from that fund to one Bartolomeo Verde, who had promised to erect a windmill. Verde had six months to complete his installation and to make it work. On failure to do so, he had to refund the privilege money at once; otherwise, within 12 years. He had to furnish security. Verde was not necessarily the first inventor of this kind of mills. He was probably the only one who knew how to build them, and the government hoped to spread and promote this knowledge. Payments of the same kind were repeatedly made in the fifteenth century, to persons claiming knowledge of either established [16] or new [17] systems of millwork ; the same as to designers of new or improved types of ships [18], and probably to many others. Such financial aid was one of the early forms of recognition for new arts. Under the guild system, all such recognition was different, and in some respects had to be different from what it is in a free economy [19]. Whoever proposed new technology needed, in the first place, a specially created power or license to infringe existing guild monopolies by making, selling or using the new invention. Such specially created rights were called privileges. They were not, originally, exclusive rights. They were granted and revoked by the state, depending on what was deemed to be useful. Novelty and inventive- 14. Molmenti vol. 1 p. 172; G. M. Thomas in Archivio Ven. vol. 8 p. 154- 156; 13. Cecchetti in Archivio Ven. vol. 29 p. 29, 30; Romanin vol. 3 p. 350; vol. 6 p. 450. 15. Zanetti p. 68, 69 (full text); B. Cecchetti in Archivio Ven. vol. 29 p. 289-292 (discussion). 16. Cecchetti in Archivio Ven. vol. 29 p. 283-285. 17. Cecchetti in Archivio Ven. vol. 29 p. 292. 18. Lane p. 56-58; 64-70; 109. 19. Hulme 12 L. Q. R. p. 141-150; Renouard p. 102-105. 714 ness were investigated, at best, in an incidental way; the main requirement was utility. Disclosure took place by actual use, rather than by the filing of a written specification in a public office. The privilege did not necessarily go to the first inventor or importer of a new art; sometimes it was thrown open to the public. This happened, for instance, in 1301, when Venice “conceded to everybody the making of glasses for the eyes, for reading” [20]; such glasses had been invented abroad, a short time before, and a statute of 1300 had expressly prohibited the glass makers’ guild from making or selling them [21]. The epoch-making invention of typography [22] collided with guild monopolies wherever the guilds were strong. In Florence, the guild of the copyists and calligraphers showed active resistance in 1474 [23]; and in Augsburg, the wood engravers had to be bought off, in 1480 [24]. No guild resistance is recorded in the Annals of Venice. When John of Speyer, a German printer, established himself on the Lagune, in 1469, he obtained, not only a privilege or right to print, but an actual patent, an exclusive right, without opposition [25]. This was the first patent of monopoly preserved in actual records of Venice, so far as known at present. There is a remark in John’s patent that it was “usual” to grant such monopolies; but no earlier grant of this kind is known, at present. It may be noted in passing that such a “usual” procedure, in Venice, had the force of customary law or common law [26]. A few years later this customary law was. confirmed by a written pronouncement [27], in the nature of a statute or administrative decree. This was the first written patent law known. It preceded the English Statute of Monopolies by 150 years. It was more modern, in that 20. Cecchetti, Vet. Ven., p. 13. 21. Cecchetti in Atti 1871-2 p. 1692-3. 22. J. C. Oswald, A History of Printing, 1928. 23. Brown p. 34. 24. Oswald p. 50-53; 314-5. 25. Below, p. 750. 26. E. Besta, Atti 1896-7 p. 404-419. 27. Below, p. 750. 715 it provided for patents as a matter of right and general principle, not merely of royal favor. It seems that, by custom and usage in Venice, inventions were officially examined to some extent, before a patent was granted. Experts were heard [28]. The procedure was probably based on interviews rather than on a record and specification in writing. This is understandable, since the bulk of the patent business was small. A substantial number of patents and numerous copyrights were granted in Venice between 1500 and 1550. In some patents, like that of Andrea Brugone for printing in red and black, in 1568 the authority found it necessary to say: “While we have not seen any plant or model in this matter, so long as the applicant achieves what he claims, be it granted etc.” [29]. Apparently a guild whose pre-existing monopoly was affected had a right to be heard. Fransesco Zamberlan, who obtained a patent for certain types of mirrors in 1572, had to prove to the guild how new they were [30]. This practice, probably of very early origin and stemming from the times when the guilds had been strong, remained in effect until the fall of the republic, as shown by instances of guild opposition in Venice at the end of the eighteenth century [31]. When novelty seemed questionable, a patent was not necessarily denied, although this happened, for instance, to Girolamo Magagnati, who claimed “a new invention, made by himself, relating to glass and mirrors,” in 1554 [32]. Sometimes a remark of caution was added; for instance, when Jacopo T.Ungaro in 1513 claimed the “useful and ingenious invention… of printing musical notation,” this was “conceded as applied for, without prejudice to concessions which may perhaps have been made before [33]. A patent for “musical notation” had previously been issued to Ottaviano dei Petrucci [34]. 28. Brown, p. 98. 29. Brown, p. 98. 30.. Cecchetti, Vet. Ven., p. 25, 26. 31. Cecchetti, Vet. Ven., p. 17, 30, 31. 32. Cecchetti, Vet. Ven., p. 26. 33. Stolfi, Appendix, No. 44 (full text). 34. Stolfi, Appendix, No. 40 (full text). 716 More frequently, a patent or copyright was granted for a shorter period than applied for [35]; according to principles no longer known in detail. Undoubtedly, patentability was not lost upon public use, by the inventor, of the invention. In fact it seems from the wording of the patents that some use, and proof of utility, preceded the patent grant as a matter of course. Two early instances of patent or copyright enforcement are known. In 1499, Antonio Moretto, holder of a copyright of 1498 [36] obtained a decree of the Council of Ten, the supreme authority of the republic, “enjoining everybody that his copyright should be respected’ [37] In 1502, Aldus Manutius, the holder of a patent of 1495 [38] obtained a similar decree [39], in support of his interests in Venice as well as in the republic of Florence, and at Lyons, France. Inherent property rights in an invention, aside from the administrative grant by the state, were not officially recognized, so far as the documents show. Even the patents of the earliest time were not always treated as inheritable property, but rather as strictly personal rights. This is illustrated by the fact that upon the premature death of John of Speyer, in 1470, a notation was added to his privilege, in the book of records: “Invalid, the master and author died” [40]. His brother and heir Wendelin continued his business, but had no benefit of the unexpired part of the patent term. Again, in 1517, the patent of Aldus was made available to the public, upon his death [41], although his firm continued. On the other hand, in 1513, a patent of Democrito Terracina, relating to Arabic print, was transferred to his nephews and heirs [42]. No express license contracts are known from this early time. However there is evidence that at least oral contracts must have been made. Aldus allowed certain 35. Fulin p. 90. 36. Fulin, Appendix, No. 86. 37. Fulin, Appendix, No. 92. 38. Stolfi, Appendix, No. 4 (full text). 39. Stolfi, Appendix, No. 3, 41, 42 (full text); Fulin, Appendix, No. 126. 40. Brown p. 10; Fulin p. 89. 41. Fulin, Appendix, No. 213 (full text). 42. Brown p. 42. 717 printers to use his patented style of greek and italic type [43], while complaining bitterly of infringement by others [44]. In general it appears that the early Venetian printers operated in rather modern ways. They opened establishments in other cities [45] and took out copyrights on an international scale [46]. For the first eighty years, they were free from guild interference and state regulation, and operated in purely capitalistic ways. They even developed toward the point where the continuity of technological development - the opposite of guild stability - was appreciated, as shown for instance by the fact that at least one of these printers, Roccho Bonicello, patented a plurality of successive improvements on printing frames, 1516 and 1551 [47]. The exact nature of some of the early patents is doubtful, due to the lack of complete details. As to John of Speyer, it is contested [48] whether he was recognized as first importer of the whole art of typography [49], or as inventor of improvements [50]. The patent to Aldus, covering greek and italic types, may be considered as a design patent ; at least it is a borderline case if classified as a mechanical invention. Other patents were more clearly mechanical. Some of these were mentioned above. We may add: a patent to Nicolo Vlastos, a partner of Aldus, in 1498, for “greek letter types united with their accents” [51]; that is, probably, with provision for separate insertion of the accents, reducing the number of necessary types from several hundred to a few dozens. Further a somewhat similar patent to Daniel Bomberg for Hebrew types with vowel signs [52]. Ugo da Carpi took out a patent in 1516 for woodcutting in chiaroscuro [53], and Antonio 43. Brown p. 43-45. 44. Brown p. 48. 45. Brown p. 44 etc.; Oswald p. 105, 112-3; 121 etc. 46. Stolfi p. 20. 47. Brown p. 98. 48. Brown p. 6, 7. 49. “There has been introduced… by…John…” 50. “It is made more celebrated and frequent by…John…” 51. Brown p. 55. 52. Brown p. 98. 53. Brown p.’98, 103. 718 Guardano obtained one in 1538 for a “new method of printing music” [54]. In 1593-4 we find a patent to Galileo Galilei, covering a pump and water distributing system [55]. Still other patents are known to have issued to glass makers in 1507 [56], 1719 [57], and 1739 [58]. The last of these, relating to a material to improve the glass mixture, was revoked when a competitor of the patentee brought proof that novelty was lacking [59]. Still further details probably could be found, either in the original records in Venice, if they are still in existence after the second world war, or in books on the various arts that flourished in Venice. As mentioned, Venice granted copyrights as well as patents. Around 1500, copyrights were granted indiscriminately, for new and old books. Gradually, it was realized that it was a necessary “condition that something was innovated for the use of the scholars” [60]. In 1517, a general copyright statute was enacted [61]; the first of its kind. It required a new book, just as the patent law of 1474 had required a new invention. Trade marks were never officially recognized by the republic of Venice; that such a mark may constitute an interest worthy of protection was not generally understood as yet, and was appreciated only by originators of trade marks, like Aldus [62]. Like later in England [63], patents developed prior to trade marks. It is remarkable that an embryonic recognition of intellectual property should appear in those early times. A statute. of 1545 [64] pointed in this way. It supported the author, as against the publisher; and it put the author’s heir on a par with the author himself. If Venice had not started to decline, about this time, it could be fairly as- 54. Brown p. 108. 55. Federico, 8 JPOS 576 (full text). 56. B. Cecchetti, Vet. Ven. p. 26. 57. B. Cecchetti, Vet. Ven. p. 27. 58. B. Cecchetti, Vet. Ven. p. 32. 59. B. Cecchetti, Vet. Ven. p. 33.. 60. Fulin, Appendix, No. 211. 61. Stolfi p. 26; Brown, Appendix 1, No. 1 (full text). 62. F. I. Schechter, The Hist. Foundations of the Law Rel. to Trade Marks, 1925, p. 63-77. 63. Schechter p. 101-145. 64. Below, p. 750. 719 sumed that a law fully recognizing intellectual property in inventions and other creations would have been enacted, and taken over by other countries. Actually, Venice declined, commercially and spiritually. The beginnings of copyright were stifled when Church and State censorship took over [65]. In 1548, the printers were forced into the straight-jacket of a state-controlled guild [66], for more convenient censorship, aside from a general policing of the trade, in Venice [67] as elsewhere [68]. When Venice had been strong, streams of Europeans and Asiatics had converged in that cosmopolitan center. With her decline, a general movement in the opposite direction became more pronounced. It brought new technology, together with the institution of individual patent monopolies, to the other states of Italy and Europe. In most places, the patent system was adopted almost exactly as developed in Venice. Florence is said to have added a system of yearly taxes on patents[69]. All of the basic patent rules developed in Venice were preserved in the subsequent systems, down to and including our present American system.
3. Patents under the Mercantile System. For some time, France absorbed a major share of the migration of artizans from Venice, and profited by it. The night of St. Bartholomew, in 1572, and the extreme religious intolerance that prevailed in France until the revolution, forced the greater number of skilled artizans and inventors to flee to England, Holland and Germany, robbing France of greater potentialities than a patent system could create. The patent system was there, and there was a distinct readiness, on the part of the Crown, to encourage inventions; but inventors, as human beings, were deterred rather than attracted. 65. Stolfi p. 27-30. 66. Stolfi p. 28; Brown p. 81 to end; Appendix 1, No. 11; Appendix 3. 67. Brown, Appendix 4. 68. Sto1fi p. 31-65. 69. Luzzato p. 27. 720 Inventions were officially encouraged in almost the same manner as in Venice. Of course, in Venice, the monarch was only a puppet of the nobility. In France, the nobility fought a losing battle with the crown, frequently siding with the guilds. In England, a somewhat similar battle resulted in manifold compromises, with the overall result that guild monopolies disappeared sooner while nobility and monarchy prevailed longer, and a free economy was established sooner. Both in England and in France, the crown gradually adopted the systems that the nobility had used successfully in Venice. The sum total of these systems is known as Mercantilism. [70] The mercantile policy as to foreign trade was mainly directed towards an excess of national exports over national imports. State-regulated manufactures and commerce were envisaged to this end. Interiorly, the system consisted mainly in grafting state control upon the existing guild organization. Many administrative tools of the mercantile system were imported from Italy. The privilege of monopoly was one of them. Patents are an eminently Mercantilistic measure. In following these policies, the crown was often in conflict with the guilds, in major questions of taxation, religion, and foreign policy. Similarly a conflict was everpresent in the relatively remote field of new inventions. Mercantilism favored some innovations [71], by patents and otherwise. The guilds were generally opposed. As in Venice, inventors required a state-guaranteed license to use their inventions, infringing some guild monopolies. It appears that the general pattern for the early privilege system was the same at all places: new technology was offered to the state; the state frequently was well disposed towards it; the guilds generally opposed it; when a. privilege was granted it was often by compromise with the guild. In Venice, the guilds had started 70. E. F. Heckscher, Mercantilism, 1935, 2 vols. 71. Heckscher vol. 1 p. 141, 170. 721 to decline at .a relatively early time, and thus we find only some traces of such compromise procedures, in the surviving records. In France, a more complete picture was preserved. The privilege procedure of France involved a proceeding before the Parlement de Paris. The local parliaments of France, and mainly that of Paris, represented the clergy and nobility [72]. They had exercised considerable legislative, administrative and judicial power, in the thirteenth .century. Practically throughout the old regime, which ended in 1789, the laws, decrees, and other legal acts of the king, including patents, had to be registered by the Parlement de Paris, in order to acquire binding force. Starting in the fifteenth century, the, exponents of royal absolutism began to reduce the parliaments to mere rubber stamps, sometimes using measures such as banishment or imprisonment of the parliament as a whole. However, the theory and institution of parliamentary registration prevailed until the end. In 1536, Francis I of France occupied Piemont, one of the highly civilized states of northern Italy. In the same year, Etienne Turquetti from Piemont obtained a privilege for the production of silk from the municipal government of Lyons in France, with the consent of the king [73]. Previous attempts had been made, for almost a hundred years, to transplant , this art into France; in fact, guilds of silkmakers had been created in other French towns, starting in. 1466. These earlier attempts had failed. Turquetti’s privilege calls him the “inventor” of an art. As in the case of John of Speyer, it is questionable whether his actual claim went to the invention of a new, improved system of organizing this complicated field, or to the introduction of a preexisting system from abroad. Lyons gave Turquetti less than a complete monopoly. It gave him the right, apparently for his life, to collect royalties from all silk makers who would newly establish themselves in Lyons. It also gave 72. Fleckscher vol. 1 p. 156; F. Aubert in Revue Hist. de Droit Fr. et Etr., 1905, 1906, 1912, 1916, 1917. 73. Below, p. 751. 722 him, and the foreign workers whom he imported, loans, exemption from taxes, and other aid. His privilege contained elements of the early, non-exclusive type, but it approached the scope of a monopoly patent by virtue of the right to collect royalties. The official papers say that Turquetti lived to see 12,000 persons employed in the industry that he had created. The first regular monopoly patent in Francewas granted in 1551, to another Italian, Theses Mutio from Bologna, for glassware according to the manner of Venice [74]. In the same year, we also find a patent of monopoly to a French inventor, Abel Foullon [75]. Starting with these patents of 1551, considerable details are known about patents and patent procedure in France, and we find that the patent procedure at that early time already was a differentiated and detailed one: Thus it is probable that individual patent privileges of some kind were known and used before. However, it is improbable that they had monopoly character before and even around 1536, except possibly in some particularly important cases like Turquetti’s. The earliest legal import monopolies of England, and. probably of France, were collective rights, granted by Parliament to importers’ guilds, as against domestic guilds [76]; an individual import monopoly was declared void in 1362 [77]. Furthermore we shall find that the French procedure existing in 1551 provided good machinery only for the setting up of the earlier, nonexclusive privileges, based on compromises- between a guild, an inventor or importer, and the crown. Finally it seems that other European countries made inventors’ privileges exclusive about this same time. In Germany, monopoly patents turned up about 1545 [78]. England learnt the same institution in 1559 from 74. Below, p. 751, 75. lsore p. 104. 76. Ashley, vol. 2 p. 102-113. 77. See the case cited in Darcy v. Allein, 1602, 11 Coke R. 84-b. 78. R. Meldau as cited byIsorep. 105. No title is given by Isore. Probably details can be found in R. Meldau, Hauptwurzeln des D. Pat. R., in V. D. I. Arb. Gem. Technik-Geschichte, Schriften-Reihe, Vol. 26, 1937 . I was unable to get this book. 723 Giacomo Aconcio, a fortifications engineer from Trent, better known as a humanist and fighter for tolerance [79]. We may assume that Turquetti, Mutio and Aconcio knew the institution of monopoly patents from the practice of Venice, which had spread to the rest of Italy, rather than that they invented the system themselves, or found it existing in their new domiciles. However, the Venetian system was not adopted without change. The first change was that it merged with the existing local system of nonexclusive privileges. The French patent grants of the sixteenth century conveyed to the patentee the “privilege to operate according to his invention” [80], together with the new feature that all others were “prohibited from copying” his methods [81]. Between 1550 and 1600, patents of monopoly were granted in France at the average rate of one every two years [82]. For comparison, we find that England, in the same period, issued about one patent of monopoly per year [83]; or possibly some more [84]. This includes, of course, the various illegal patents which finally gave rise to the Statute of Monopolies. The smaller number of patents in France was probably a result of two facts: fewer inventors appeared in this intolerant kingdom; at the same time, there was a more thorough and continuous parliamentary interference with the free granting of undeserved monopolies. While Mutio’s patent, as granted by the king in 1551, was to run for ten years [85], we -find that it was registered by the Parlement de Paris for only five years [86]. In frequent cases, until the revolution, patent terms were shortened by the Parlement; modifications were imposed, particularly in favor of guilds [87]; and sometimes the 79. D. S. Davies, 50 L. Q. R. p. 99 and Literature cited; Erich Hassinger, Studien zu James Acontius, 1934, p. 1-20. 80. Isorep. 106, 107. 81. Isore p. 114. 82. Isore p.,104. 83. Hulme, 16 L. Q. ‘R. p. 52. 84. Davies.,1 50, L. Q. R. p. 86. 85. Below, p. 751. 86. Isore p. 101. 87. Isore p. 103, 118, 120; Malapert; G. Fagniez, L’Economie Sociale de la France sous Henri IV, 1897; p. 77-163. 724 royal patent was altogether denied by the Parlement [88]. Plainly, we have here a patent system with opposition proceedings, of a medieval type. Before the Parlement obtained a chance to see a patent application, an ex parte proceeding took place. This was centered at the royal court. The king, through his council, issued a letter of exclusive privilege to the alleged importer or inventor of a new art or machine. In this stage, probably, political support was as essential as a meritorious invention. In fact, it is not known that the crown examined the merits of an application at all, about 1536 and possibly for hundred years thereafter. It is possible that the king was .motivated merely by the representations of some nobleman, like the one who presented and .supported Mutio. However, in 1666, Colbert established the Academie des Sciences, following the example of various Italian academies founded in the 15th and 16th centuries, which in turn had been modelled after ancient examples. In France [89] as well as in England [90] the kings now started to consult their scientific advisers, on patent applications, thereby adding the- system of official examination to the pre-existing opposition practice. In 1699, the French academy received regulations, by a .decree of the king, which contained the first written law, anywhere, incorporating an examination system [91]. The basic defect of this law was merely that it was not obligatory. While it was usual for the king’s council and also for the Parlement to consult the academy, no such consultation was strictly necessary for either [92]. When a. royal letter of privilege had been granted, an attorney presented it to the Parlement. Special examiners were then appointed by the Parlement, to investigate the “value” of the invention, in consultation with the various officers of the crown who were in charge 88. Isore p. 121. 89. Historie de l’Academie, 1699, p. 119, 148, 159 etc. 90. Davies, 50 L. Q. R. p. 106-108. 91. Below, p. 752. 92. Isore p. 125. 725 of guilds, commerce and taxes [93]. While the academy scrutinized novelty and “utility” of the invention, the Parlement was most interested in the competitive chances and prospective tax value of the proposed enterprise, to be based on the privilege [94]; in other words, the future commercial success of the invention was discussed in this opposition procedure. This ill-conceived system remained in effect until the revolution. A paper .published in the revolutionary era speaks of the then existing system of patent examination by “the learned bodies and fiscal aids”; it states that such an examination necessarily leads to corruption [95]. We know now that this is not necessarily true. The true fault of the system was that it gave consideration to the commercial chances; the technical merits of inventions should have been scrutinized exclusively. The terms of the patents, as registered by the Parlement, varied between 5 and 30 years [96]. In 1762, a statute fixed the term at 15 years [97]. The patents issued after 1551 had property character [98]. Sometimes they contained an express grant to the inventor, his heirs- and assigns [99]. The very earliest patent in France, as mentioned, had been a personal grant for the lifetime of the patentee, similar to the patent of Aldus and others, in Venice; also similar to the still earlier, non-exclusive privileges, which in all probability had been personal and not transferable, according to the general civil-law jurisprudence of special privileges. The statute of 1762 limited patent transfers, in the interest of prompt utilization of patents [100]. Mercantilism had inherited the principle of strict regulation from the guilds; thus it is not surprising that patent property, 93. Isore p. 120, 121; Heckscher Vol. 1 p. 152-155. 94. Isore p. 122. 95 De Boufflers, Report of 1790, in French Patent Reports, First Series. Vol. I p. 57-74 (full text). 96. Isore, p. 115. 97. Below, p. 753. 98. Isore p. I09. 99. Isore p. 114. 100. Below, p. 753, 754. 726 like other property, was impressed with social obligations, and subjected to administrative interferences. The practice had started in Venice [101]; it continued under the king of England [102], the king of France [103], and the Parlement de Paris [104]. Sometimes the price at which the patentee could sell his goods [105] was fixed by the king or added by the Parlement. Compulsory licenses [106] and working obligations [107] were known. The statute of 1762 provided generally that a patent should lapse if the patentee, for one year, had attempted, without success, to put it to use, or had failed to use it at all; subject to a right of the patentee to show good causes. [108] Our main source for these details is a record of, parliamentary registrations, kept by the councillor LeNain and his’ successors [109]; along with the patent drawings and specifications, approved by the academy between 1666 and 1735, which were reconstructed by M. Gallon; on the basis of the models preserved by the academy [110]. These records Gallon and LeNain constitute, respectively, a Patent Gazette and a set of Commissioner’s Decisions under the old regime of France. They reflect a patent system containing all basic elements of our present one; including medieval reminiscences, such as the examination as to “utility” and commercial success; and omitting only one essential feature - the legal right of an inventor to claim for a patent. This right, and somewhat more than it, grew up in the French law of the pre-revolutionary era, 1700 to 1789, starting with a relatively small and unobtrusive development in the city of Lyons. It was here that inventions were recognized as inherent property, not merely subjects of administrative grants that could be given or 101. Brown p. 57. 102. Davies, 50 L. Q. R. p. 100-105. 103. Isore p. 102. • 104. Isore p. 112, 119. 105. Isore p. III. 106. Isore p. 102, I11. 107. Isore p. 116. 108. Below, p. 753, 754. 109..Through Isore. 110. Machines et Inventions Approuvees par l’Acaclemie, 7 vols., 1735 to 1777. 727 refused. This recognition was incorporated in statutes, reflecting a legal concept, first by implication, and later in express and even emphatic terms.
4. Intellectual Property in France. Lyons is one of the oldest and largest trading centers of Europe. Located between Paris and Marseilles, it handles most of the goods moving between the Mediterranean and the rich country of France. Thus it is understandable that this town preceded the rest of France in adopting the system of monopoly patents, and again, in developing a new doctrine of industrial property. For centuries before 1711, the year of the first design property statute [111], embroidered silk from Italy and the East, largely imported through Venice, for the clergy, the nobles and the kings, had been among the chief staples sold and bought in Lyons [112]. The domestic production of silk, after Turquetti’s privileged enterprise of 1536, had hard and easy times in succession, and finally, under Louis XIV, developed into one of the greatest textile -industries of the world. The other local industry of importance, in fact the largest of all, was printing and publishing [113]. This, too, had various contacts with Venice and the other centers of Italian civilization [114]. Lyons was a ville de loi, that is, a town where the local guild system was soon and thoroughly integrated with the local government, while mutual independence of guild and government, for a long time, was characteristic of other towns, the villes :jurées [115]. This integrated guild system of Lyons reached maturity at a relatively early time. The capitalist system followed when the guilds declined, in Lyons as well as London and other industrialized places. The organization of the silk industry in Lyons was based on homework. Large concerns, owned by “master merchants,” let the spinning, weaving and embroidering 111. Below, p. 752. 112. A. Kleinclausz, I-list. de Lyon, 1939, vol. 1, p. 504; Pouillet p. 1-3. 113. Kleinclausz p. 506. 114. Oswald p. 121; also see Footnote No. 39. 115. Heckscher p. 142-151; Kleinclausz p. 471, 503. 728 work to “working masters,” who in turn employed journeymen and apprentices. The master merchants also employed special designers, some of whom, in the course of the years, acquired fame and wealth [116]. There was keen competition between the master merchants of Lyons and those of other places in France. Moreover it seems that competition must have been lively, and not always fair, among the local master merchants, judging from the early design property statutes [117]. In evaluating these statutes, in connection with the development of patent laws and concepts, we must consider that the idea of “stealing” or “selling,” as applied, to an incorporeal and even unprivileged “design,” was entirely new to the legal arsenal of the time. Here it was clearly implied that such designs have property character. With this in mind, we may call these statutes revolutionary. Thus it is quite understandable why several statutes of the kingdom of France were necessary to fully elaborate and implement the idea. There were five such statutes. That of 1711 [118] was supplemented by one of 1737, adding stronger penalties [119]. These added penalties were suspended by an act of 1739 [120]. Positive and substantive additions were made by the acts of 1744 and 1787 [121]. The rudimentary provision of 1711 had been directed against the breach of -a fiduciary relationship involving design property. This reappeared in the later acts. The addition of 1744 consisted in a general provision against violation of design property, regardless of fiduciary relationships. The final act of 1787 added the necessary administrative machinery, similar to that in force for mechanical patents, for “establishing, in safe manner,” the subjects of design inventions. It expressly referred to design “property.” This term was new; 116. Pouillet p. 3. 117. Below, p. 752. 118. Below, p. 752. 119. Pouillet p. 4. 120. Pouillet p. 4. 121. Below, p. 752, 755. 729 no ‘statute of any country had used it, or any equivalent of it, so far as we know. The actual concept, of course, goes -back to the statutes of 1711 and 1744. The act of 1744 protected designs “either old or new,” without time ‘limitation. This was repeated in Article 3 of the act of 1787, while Article 1 of the same act limited the design property to “new” designs, and to a term of 15 years. Obviously, the legislator had no clear answer to the question why a design invention, or any invention, can be “property,” and the right can still be limited in time, and expire as to “old” matter. In civil law, an estate limited to a term of years is generally distinguished from property. Thus a bad flaw remained, after the broad, official recognition of design property; but historically, the important thing is that this property was recognized in principle. This was, at the same time, the first statutory acknowledgment of a legal claim for protection for new inventions. In this respect, the French act of 1787 went beyond the American patent law of 1790, and subsequent acts, which merely stated, in express-terms, that it shall be “lawful” for the state to issue a patent, leaving it to the courts to say that the issuing of a patent, under proper conditions, is a duty of the state ; the nature of this duty being a vague and uncertain thing. The series of design property acts had originated with the silk-manufacturing guild, not with the government . It may appear surprising that, of all possible groups a guild should have instigated a legal development that culminated in the recognition of individual, intellectual property. However, the process can be explained. The guilds, as holders of collective monopolies, were opposed to outside interference rather than to innovations as such [122]. While they inherently were not a fertile culture ground for new developments, they did not necessarily condemn development as such, when it did grow up among the members themselves. Most guilds were also far from any communist ideal, although they exercised a levelling influence and prohibited excessive competition between the masters of the guild. Therefore, if one 122. Heckscher, p. 170-176; Schechter p. 40-47; Piola-Caselli p. 7. 730
In the villes de loi, a guild rule was inherently a rule of law. This is how the first design property statutes became the law of Lyons. In view of the national importance of this local trade they were even sanctioned by laws of national authority. The first laws had only local scope, but the final one was effective throughout France, as well as based on the national legislative power. The crown, in sanctioning the laws of 1711 and 1744, undoubtedly did not intend to recognize industrial property in a broad sense. The new expression “stealing” or “selling” a “design” passed by, unnoticed by the law officers of the mercantile system. It .merely reflected, on a national scale, an unofficially existing tendency of thought. The opposite trend was still prevailing at court. In fact, as late as 1776, the king called copyright privileges a mere matter of “grace founded on justice’ [125]. A law of 1777, echoing this royal compromise proposal, expressed itself against the notion that privileges could be a matter of claims or.-property, but tried to apply equitable principles to the granting .of privileges [126]. It is an ingrained notion of Mercantilism, incidentally not yet overcome in America, that while inventions are generally useful they differ from property 123. 13. F. Hyslop in Am. Hist. Rev. 139 P. 267; Pouillet 13: 10-13. 124. Schechter p. 108-120. 125. Stolfi p. 86. 126. Blanc p. 237-239 (full text); Stolfi p. 87. 731 in that they may or may not be protected by the laws, as the state sees fit. On the other hand, from the standpoint of the silkmakers of Lyons, in 1711 and 1744, design inventions were property, based on achievement. Like all other property they were surely subject to far-reaching social limitations by the guild and state; but they were property nevertheless. The consuls of Lyons expressed this view in a further ordinance of 1778, promptly after the conservative copyright laws of 1777 [127]. The textile manufacturers of other places in France joined, in demanding recognition of this property [128]. Before this standpoint could be fully and expressly sanctioned, by the law of 1787, Absolutism and Mercantilism had to be broken down to a large extent. This was actually done; not by the guilds, but by a philosophical school of thought that refused to accept the existing order of things as final. Denis Diderot was the most outstanding representative of this school. His “Letter on the Blind,” published in 1749, was a smashing attack on the clerico-monarchical system. It netted Diderot three months in prison. Between 1751 and 1772 he published and largely wrote the “famous Great Encyclopedia. This work “takes for granted the justice of religious tolerance and speculative freedom. It asserts in distinct terms the democratic doctrine… It is one unbroken process of exaltation of scientific knowledge on the one hand and pacific industry on the other”. [129} One of the secrets behind Diderot’s ultimate, although belated success was that to him, the king, the censors and the guilds were quite dead. This made his writings peculiarly free from all excitement of the day. It enabled him to endorse the good points even in an institution of the old regime. 127. Pouillet p. 5, 6. 128. Pouillet p. 6. 129. Encyclopedia Britannica, “Diderot.” 732 His “Letter on the Publishing Trade [130]” was a defense of privileges. It was occasioned by the affair LaFontaine [131]. The king’s council had issued a privilege to LaFontaine’s grandchildren, for the books of this famous poet, although LaFontaine himself had received such a privilege before, and had sold it to a publisher, who was still in possession of it. The publishers’ guild felt that the arbitrary procedure of the crown was apt to make privileges worthless, and to result in final abolition of all privileges. They entrusted their case to Diderot, the declared enemy of monopolies. Diderot accepted. In his “Letter,” he traced the history of publishers’ privileges in France, and justified them. The “Letter” was constructive throughout. It argued for the original privilege of the elder LaFontaine, not against the new one to his descendants. While written in 1767, it was directed to a public of 1787 and 1789; and it reached that public. Without this defense, copyrights and patents might have disappeared. It was not apparent to all that the fall of Mercantilism had to be accompanied by a triumph of intellectual property. Such property had been asserted before, implicitly in the early statutes of Venice and Lyons, and even explicitly in treatises and opinions [131a]. It was left to Diderot to incorporate the doctrine of intellectual property in the broader concepts of a free society. Others did the necessary breaking down and clearing out. Starting about 1740, Mercantilism was strongly attacked by the followers of Quesnay, the king’s physician, who called themselves Physiocrats. They postulated a supremacy of hitherto neglected agriculture over the manufactures; also, judicial protection of property over administrative regulation and abuse; and national wealth at home over financial gain by export. At first the physiocratic school gained partial recognition by the 130 . Below, p. 754. 131. Stolfi, p. 85. 131a. For instance Beyer, Kurzer Bericht von der nuetzlichen Buchhandlung, 1690; J. FL von Berger, Electa Disceptationurn, 1706, etc. 733 king; it precipitated the end of the guilds, monarchy, and the mercantile system [132]. While they considered manufacture as a matter of secondary importance, the Physiocrats in general were not opposed to it, and mainly not to inventions and discoveries. Quesnay was careful to assign logical places, in his somewhat dogmatic system, to artisans in general, and to privileged inventors in particular [133]. His pupil Turgot became comptroller general of France in 1774, under the new and feeble king Louis XVI . In the preamble of his famous Edict of February 5, 1776, abolishing the guilds, he emphasized the rights of inventors, as against the Stationary character of the guilds [134]. Turgot failed; the edict was revoked, and he was dismissed, on May 12, 1776. However, the stranglehold of Mercantilism had been broken. While state-controlled guilds returned, in August 1776, they were almost as lame as the subsequent act supporting them [135]. Inventors needed no aid against guilds any more. While the king called a privilege a “grace founded on justice,” popular opinion had come to see justice alone behind such a grant. This was merely evidenced by the act of 1787, relating to design property. The actual transition in the legal thinking on patents had started about 1711 and had become irresistible after Diderot’s “Letter” of 1767. On July 14, 1789 the people of Paris stormed the Bastille, and ended the old regime. This time, the guilds and the Mercantile system disappeared for good. There followed the act of 1790, on patents, which took the last step to complete the development of 1711-1767 and 1787. It applied the principles of industrial property, with administrative registration, to inventions in general. It restated this principle in stronger terms; probably the strongest terms used by any such law at any time. 132. M. Beer, An Inquiry into Physiocracy, 1939, p. 69, 70; See, p. 158-161. 133. F. Quesnay, Dialogue on the Work of Artisans, 1766. 134. Below, p. 754. 135 . Below, p. 755. 1313 Below, p. 756. 734 Now, the idea of intellectual property gained recognition in a great part of the world. The act of 1790 suffered from the same .defect as that of 1787; it failed to make it clear why a right, called a property right, should be limited in time. Another flaw was that the act abolished the old examination system entirely. There was some opposition on this point, during the debates concerning this act [137]. The complete recognition of intellectual property lasted only a few years, in France. The first step away was made when the Constitution of the “year III,” that is, 1795, provided in Article 357: “The law shall provide for the recompensation of inventors or for the maintenance of the exclusive property of their discoveries and productions” [138]. The idea of recompensation, otherwise than by the exclusive right, was plainly a return to the earliest forms of privileges. This idea was supported by Alexander Hamilton in America [139], and was strongly urged, about the middle of the nineteenth century, by Michel Chevalier in France [140] and Macfie in England [141]; however, it failed to displace the system of monopoly patents. A more decisive step away from the doctrine of intellectual property was done when Renouard [142] and OlinPicard [143], the then recognized authorities on patent, and copyrights, declared themselves against this doctrine for the reason that the necessary limited character of the author’s and inventor’s rights could not be reconciled with the idea of property. As a result of such views, the new French patent law of 1844 avoided all reference to intellectual property. Finally, in 1887, the highest court of France, with practically no reasoning at all, declared that there is no such thing as intellectual property [144]. 137. French Patent Reports, First Series, Vol. 1 p. 57:75. 138. Blanc, p. 17. 139. Report on Manufactures, 1791-2, Constitutional Edition vol. 4 p. 143, 197. 140. Les Brevets d’Invention, 1878. 141. Abolition of Patents, Recent Discussions, LondOn 1869 (anonymous). 142. Renouard, op. cit.; also Traite des Droits d’Auteurs, 1838. 143. Traite des Brevets, 1869, p. 25. 144. Bull. Cour de Cassation, Civ., 1887, p. 321. 735 The mere, hollow phrase “intellectual property” survived, while the positive doctrine, according to which the civil law or common law inherently created such a property in the author of a new work, or the inventor of new technology, lost all official recognition. This change took place almost everywhere, as the precept was set in France. We can say, with very slight exaggeration, that France created this doctrine during the eighteenth century, and destroyed it during the nineteenth. The main effect, and probably also the strongest reason of this remarkable change pertained to the employer-employee relationship. Intellectual property, by definition, belonged to the inventor. When the doctrine of intellectual property had disappeared, the claim for a patent, and title to the patent, was suddenly found in the hands of the inventor’s employer. In the absence of any contract, he was held entitled to all benefits, including even the right to apply for the patent in the firm name [145]. The convenient excuse was furnished by the doctrine that a right, presumably held by the inventor, cannot be property if it is limited in time. Actually all rights of the inventor, whether property or not, were disregarded. The true motive was greed and shortsightedness. The patentee was pampered, but the inventor was forgotten. It is significant that at the same time the relative industrial strength of France, compared with that of her neighbors, fell to lower levels than under the old regime.
5. Intellectual Property in America Implied statutory recognition was given to intellectual property in England, simultaneously with the first design property statute of France [146]. The first and only English act that must be mentioned in this connection, known as the statute of Ann, 1711, refers to the “author or proprietor” of a new work, clearly implying that authorship establishes a property, which can be transferred to a publisher. Obviously, this idea had devel- 145. See Propriete Industrielle, 1922, p. 22-31. 146. Lowndes, Hist. sketch of the law of copyright, 1840. 736 oped prior to the statute and was presupposed, like a notion requiring no special affirmation. A similar implication had been made in America, at an even earlier date. The Colony of Massachusetts, in 1672, had prohibited the making of reprints without the consent of the “owner of the copy” [147]. It appears that the same trend was strongly active in England and her Colonies that was found in France, and that we could trace to the Venetian statute of 1545. In the early Anglo-American patent system we also find, of course, statutory expressions of an unmistakably mercantilist vein. For instance, Connecticut, also in 1672, allowed patent monopolies only for such matters .and times as were deemed “profitable for the country” [148]. Here, the clear implication was that the mere fact of invention did not necessarily give rise to an inherent, exclusive property right of the inventor. Of course it is possible that this mercantilist thought was disregarded in practice; we have its equivalent in our present “utility” statutes, and disregard it, along with many other obsolete expressions. There is at least a potential conflict between such views as are represented by the two acts of 1672. In England, this conflict became actual and found a none too pointed decision in the interconnected, leading cases of Millar v. Taylor, before the King’s Bench in 1769 with Lord Mansfield presiding, and Donaldson v. Becket, before the House of Lords in 1774 [149]. The issues involved in both cases can be reduced to the questions: (1) whether the common law recognized a. right of intellectual property in an author; (2) whether this right continued in existence after the publication of a work; (3) whether this common law right went beyond certain rights declared by the Statute of Ann; and (4) whether such farther reaching common law rights could prevail. after the Statute of Ann. Mansfield and the majority in Millar v. Taylor answered each of the four questions affirmatively. 147. Below, p. 758. 148. Below, p. 758. 149. 4 Burr 2303 and 2408. 737 In Donaldson. v. Becket, the fourth point was clearly denied by the majority: This was sufficient to reverse the practical result. It is contested whether a majority in Donaldson v. Becket denied the first and second point also [150]. This is not easy to ascertain. Nor is it very significant. Whatever any majority in the Donaldson case said about this first and second point amounted only to a judicial dictum, in view of the clear and sufficient holding about point four. The majority statement in the Millar case, concerning the first and second points, was a true holding and opinion, deciding a necessary issue of the case, and, is good common law now, as well its before the Donaldson case: Moreover, Blackstone’s first edition, completely published one year before the Millar case, had recognized and taught that the common law vested the author of a new work, as such, with an exclusive right. The same view was expounded in the vast majority of the two dozen pamphlets on intellectual property that appeared during the era of Donaldson v. Becket [151]. If still further confirmation of the doctrine was necessary,-it was furnished by the state copyright statutes enacted under the Colonial Congress [152]. A majority of these provided that a copyright belongs to the author of a new work, or to his heirs, administrator or executor [153]. This possibility of transfer upon death is one of the main incidents of property. In ten states, a: preamble preceded the statute. Four of these preambles [154] recited in substance what Diderot had said, that no one is so clearly the master of his goods as a man is the master of the products of the labor of his mind. They added, in various forms, the good old mercantile argument that the common interest is furthered by encouraging such 150. See Wheaton v. Peters, 33 US (8 Pet.) 591. 151. Th. Solberg, Bibliogr, of Lit. Prop., in The Publisher’s Weekly, 188285; reprinted In R. R. Bowker, Copyright, 1886. 152. Th. Solberg, Copyright Enactments of the United States 1783-1906, Copyright Bulletin 3, 1906. 153. Solberg, Cop. En:, see under Conn., Md., N. J., Pa., No. C.,. Ga. and N. Y. 154. Below, p. 758, 759, Mass., N. H., No. C. and R..I. 738 labors. One statutory preamble [155] said that natural equity and justice “require” the securing of such productions to every author. Three [156] stated somewhat more cautiously that such securing is “perfectly agreeable” to natural equity and justice, and of course conducive to the public good through the encouragement of extraordinary labors. Three had safeguarding clauses for common-law copyrights [157]. The sum total of these preambles creates the impression that the common law doctrine of intellectual property was not only known but generally recognized, and locally considered as a most important law. The essential items added to these established principles, by the statutory enactments of the states, related to the term of the copyright, the requirement and benefit of registration [158] and the duty to provide sufficient editions of copyrighted books, at reasonable prices [159]. Thus we can consider the doctrine of intellectual property as well settled in the common law of copyrights, as of 1787, although at later times, this was occasionally doubted [160]. It is another question whether the same doctrine is or was settled, or tenable, under the common law as to patents [161]. Blackstone did not say so; no books or pamphlets asserted it; and no English case was brought to decide this issue. This relative silence of the law books, as to patents, is not the only distinguishing feature. From the beginning, England favored copyright privileges over patent privileges; mainly by the granting of much longer terms. In order to understand this we must go back in-history, once more. The earliest Venetian copyrights were granted for rather short periods. Occasionally, one of the earliest 155. Below, p. 758, Ga. 156. Below, p. 758, Conn., N. J., N. Y. ‘ 157. Solberg, Cop. En., under Conn., Ga. and N. Y. 158. Solberg, Cop. En., under Conn., Md., N. J., Pa., So. C., Va., No. C., Ga., N. Y. 159. Solberg, Cop. En., see under Conn., So. C., No. C., Ga. and N. Y. 160. Wheaton v. Peters, 33 US (8 Pet.) 591, Dictum in majority opinion, 161. Wheaton v. Peters, Dissent. 739 copyrights failed to state a term or time limitation [162], and it has been assumed that this evidenced a rule of law according to which such privilege was granted for life or perpetuity [163]. However, it is more probable that the omission was due to neglect, and that these earliest rights actually were granted with the understanding that they would be revocable at the will of the state. If Venice, in 1570, made authors’ copyrights “perpetual” [164] this was a new development, intervening more than hundred years after the first privilege known, and more than twenty years after the establishment of the printers’ and publishers’ guild. It is probable, then, that such far-reaching recognition of copyrights was a direct or indirect result of pressure exerted by the guild. In England, the history of copyrights started practically simultaneously with that of the Stationers’ Company, which was the pertinent guild in that country. Inventors, inherently, were always bare of any aid by the guilds, and frequently exposed to hostile guild intervention, while authors, through their publishers, had the benefit of representation by a large national guild. In fact, societies stemming from that guild are still surviving, while neither engineers nor especially inventors, as a group, are organized in any way. Thus it is not particularly surprising that long-lasting copyrights were issued, while patent terms were relatively limited at all times. Yet, this was merely a result of differential bargaining powers, in the fight for intellectual property protection. Inherently, there was and is no justification for copyright terms being any longer than patent terms, or for copyright protection being any stronger than patent protection. Unquestionably there was no common law in favor of either copyrights or patents, in England before or under Elizabeth. That a common law right to copyright protection was recognized under George III must have been 162. Stolfi, Appendix No. 5, 6: 163.Stolfi p. 22. 164. Stolfi p. 29. 740 the result of administrative practices gradually being condensed into a custom, or common law. With equal justification, a common law right could have been ascertained, in the era of the Donaldson case, whereby an inventor, as such, owns an exclusive right in his invention, before and after publication thereof, in the absence of a patent statute. No patent statute interfering with such a common law right had intervened in England; the only pertinent enactment, before the19th century, was the clause in the Statute of Monopolies whereby limited monopolies for inventions were authorized. This Statute neither required nor regulated patents, except that it fixed a maximum term. With or without a statutory basis, it was not usual to “claim” patents from the crown, but to “pray” that a patent may be “granted.” In fact these servile terms are used even now, in this supposedly free republic. They have long lost their original connotations. They only mean, the applicant asks the state to certify his existing rights. This was the connotation, as to copyrights in England, as early as 1700 or earlier. We can conclude that this was the connotation also, as to patents, about the same time. This analysis differs from that of the writers who consider English common law as a homespun affair, eternally preserving the dust of the middle ages,, and recognizing a right only if a solemn court, on the basis of more or less pertinent opinions of similar courts, has expressly, definitely and insistently declared that this right, and not an iota more or less, has existed since times immemorial, and must exist at all times. Such a court did happen to be invoked, and did express itself, in the Millar and Donaldson cases. What it actually did, in finding that the common law recognizes copyright claims, was to condense an administrative practice into a rule of law. The same practice had been prevailing as to patents, and any court, then or now, was and is justified in finding that the common law recognizes similar patent claims. 741 The administrative practice of the English crown was paralleled by one m the colonies, and later in the States. Patents were issued as a matter of course [165]. Perhaps the strongest argument for common law patent rights appears from two of the state copyright statutes. One of these [166] included “useful discoveries” in the list of achievements, resulting from protection of intellectual property. Another [167] was still more explicit and provided : “The inventors of useful machines shall have a like exclusive privilege of making or vending their machines for the like term of 14 years, under the same privileges and restrictions hereby granted to and imposed on the authors of books.” In addition, the preambles of several state copyright statutes were broad enough to be applied to inventors as well as authors’ [168]. Therefore, it is a well supportable theory that modern common law vests the inventor with property in his invention in the same manner that it vests the author with property in his book, although primitive common law recognized neither. This theory has been rejected by no one less than Thomas Jefferson, in a private opinion occasioned by his dispute with Oliver Evans [169]. Jefferson’s opinion is one of the most plausible statements of the view opposed to common law patents, or industrial property. However, it is largely based on assumptions contradicted by the history of patents, namely, that industrial property, as historically asserted, implies a perpetual property [170], and that English precedent is the only one in point [171]. Jefferson either wrote the patent act of 1793, or at least influenced the underlying theories. According to this act, the applicant for a patent had to signify, in his petition, a “desire of obtaining an exclusive property” in his invention, not a claim to have an existing property secured 165. P. J, Federico, II JPOS 358 and 13 JPOS 166. 166. Below, p. 758, 759, see No. C. 167. Solberg, Cop. En., see So. C. 168. Below, p. 758; 759, see Mass., N. H., N. J., R. I. 169. Below, p. 759. 170. Below, p. 759. 171. Below, p. 760. 742 to himself. This language was used also in 1836. It was changed, however, in 1870. This fact should be remembered when the question comes up whether certain holdings and dicta in early “leading cases” have binding. force at the present time. The first American leading case in point [172] related to copyrights. The question of common-law copyrights was discussed; the majority was doubtful, and there was a dissent in favor of such rights. The actual holding, is squarely based on the statute, and nothing of binding force was said about the common law right. Incidentally, both the majority and the dissenting opinion remarked that there is no common law property right of inventors. This was, plainly, a mere dictum, so far as this case is concerned. Nevertheless, it was frequently repeated, and cited as authority, at later times. The trouble is that no distinction was made between common law and primitive common law. The dictum is true only as to the primitive law. The next leading case [173] related to Fitzgerald’s patent for a. fireproof chest. While Fitzgerald’s application was pending he assigned his rights to Wilder. Later the patent was issued, to Fitzgerald. Wilder then sued Gayler for infringement. Gayler denied, among other things, Wilder ‘s title. The lower court held for Wilder. On Gayler’s appeal to the Supreme Court, Wilder was represented by Webster, who argued on the basis of the common law doctrine of industrial property. He prevailed; the decision was affirmed. However, the opinion, by C. J. Taney, reflected the doctrine in a modified form. The inventor’s right, before issuance of the patent, was called an “inchoate right.” Taney held that the right can be transferred and that the transfer carries title in the subsequent patent to the assignee. However, Taney added a dictum that the inchoate right supports no suit to exclude others. This dictum is plainly in keeping with those in the previous case, although the actual holding of Taney goes away from that case. The dictum, of course, could 172. Wheaton v. Peters, 33 US (8 Pet.) 591. 173. Gayler v. Wilder, 51 US (10 How.) 477. 743 be based also on the doctrine of Donaldson v. Becket, although it is still a question why that case was followed in the dictum, but apparently not in the holding. perhaps the case can be rationalized as a further development of Donaldson v. Becket. The Donaldson case settled the situation as to common law rights exceeding the statutory rights in scope, to the effect that the statutory right, alone, can prevail. The holding in the present case modifies this, while the dictum shows that the rule is only modified but not abolished. Somehow it was felt that in a proper case, the common law rule can supplement the statutory rules. The difficulty lies in finding what is a proper case for such relaxation of the principle of Donaldson v. Becket. It is hard to see that a recognition of assignments entirely based on common law grounds is so much more essential or equitable than a recognition of a right to sue on common law grounds, as to justify the general relaxation of the rule in favor of the former but not for the latter. The case may come up where irreparable damage is threatened to a party who cannot sue for infringement, on common law grounds, prior to the issuance of the patent. In such a case, equity should allow a suit, regardless of the unexplained dictum added, by Taney to his law decision. There was a dissent in the present case, which even denied the inchoate right recognized by Taney, in very strong terms. This extreme view has been rejected by the prevailing school of thought. Taney’s dictum was cited with approval in subsequent cases [174], and can be said to represent the prevailing view. Occasionally it was stretched to the point where highly questionable results were based on it. For instance, in one case [175], the Supreme Court held, on the alleged authority of Taney’s dictum, but actually expanding it, “until the patent is issued there is no property right in it.” A patent had been sued upon which due to a neglect, did not bear the signature of the Secretary of Interior. It was held that such a patent will 174. For instance Brown v. Duchesne, 60 US 183. 175. Marsh v. Nichols, 128 .US 605. 744 not sustain an infringement suit, because it is only the patent, in strict compliance with the statute, which creates a property interest in the invention. This Supreme Court holding, while paying lip service to Taney’s unexplained dictum, violates the spirit of Taney’s actual holding. It is believed to be bad law, and to be overruled, in effect, by modern holdings of the Supreme Court, relating to common law principles. Congress validated the patent involved by a special act, enacted before the Supreme Court decision, but providing that cases arising prior to the passage of the act should not be affected. [175a]. In an interesting case before the Court of Claims [176] it was intimated that the common law of patents, like that of trademarks, may well have gradually developed from the stage of ignorance to that of recognition of a doctrine of intellectual property. The historical facts submitted are strong evidence for such a development. While intellectual property is either rejected or only contemplated from far, by American courts, the doctrine can claim some literary support. Common law patent rights were definitely asserted by Daniel Webster [177] and at least implied by Professor Robinson [178, aside from lesser support [179]. Some writers have left the question more or less open [180]. A majority, of course, is contented with simply repeating the tenor of the holdings and dicta of the courts. The result of the majority view is that the basic principles of our present patent law are the same as those established in Venice before 1500, in France before 1700, and in England at some later time. According to this view we are not at the point where Lyons was in 1711, 175a. 24 Stat. 378, C93. 176. M’Keefer v. U. S., 14 C. C. 396; also see Walker-Deller on Patents, vol. 2 p. 1152. 177. See Gayler v. Wilder, 51 US (10 How.) 477; also citations in 0. R. Barnett, Patent Property, 1943, p. 507, 508. 178. Robinson on Patents, Vol. I p. 15. 179. For instance, see the anonymous pamphlet, by Oliver Evans, Exposition of Part of the Patent Laws by a Native Born Citizen, 1816, p. 51; also Oliver Evans to his Counsel, 1813 or later, p. 48; Walker on Patents as cited 14 JPOS 236; J. L. McAuliffe 14 JPOS 258, etc. 180. Terrell on Patents, 8th ed., p. 4; C. J. Hamson, Pat. R. for Sci. Discov., 1930, p. 3. 745 France in 1767, and the rest of the -world soon after 1790. There is something unlikely in this view. Of course the suggestive power of the principles enunciated by Diderot and his followers may be diminished, in the eyes of some, by the fact that France and the rest of the world have subsequently repudiated them, during the decades of reaction. We, however, are still holding to the principles of our basic laws, which are so close to those of the French revolution. What, then, does our Constitution mean when granting Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries?” European observers discover a recognition of inherent industrial property rights in our constitutional patent clause [181]. It may be that, if the European history of patents had been known, the opinions of Jefferson and Taney would read differently. It is unknown what the authors of our organic law intended, subjectively. However, we have some aids towards a. proper, objective construction of the document. While there is nothing within the four corners of the document itself which tends to interpret the patent clause, we do have a number of preliminary drafts of the clause [182] in addition to the prior laws of American and foreign states. These drafts are almost identical with one another, so far as author’s rights are concerned, signifying that there was no serious debate about the copyright protection to be secured to authors. Concerning patents, these drafts are at variance. One [183] fails to provide for patents at all. Another [184] makes a distinction between literary authors and inventors, rewarding inventions by “premiums and provisions,” in accordance with Alexander Hamilton’s views. This, as others [185] is vague enough to allow a construction identi- 181. K. Michaelis, Am. Pat. Recht, 1932, p. I, 8; J. Vojacek, Survey of the Princ. Nat. Pat. Syst., 1936, p. 7, 8. 182. Below, p. 759. 183. Below, p. 759, No. 1. 184. Below, p. 759, No. 2. 185. Below, p. 759, No. 3, 4. 746 cal with the preceding draft, as well as a construction involving exclusive rights. Still another [186] puts the “discoveries” of inventors definitely on the same exclusive-right footing as the “performances” of other authors. The substance of this latter draft re-appears in the Constitution as actually adopted, aside from differences of expression. An important reference to the advancement of the arts was added. In this respect the second draft was followed; but while that draft authorized only “premiums and provisions,” the Constitution speaks of exclusive rights. If these drafts signify anything then it is, in the first place, the intention not to do away with patents, and with exclusive rights to inventors. In the second place there is an apparent intent, in the clause as adopted, to put inventions on the same footing with literary writings, so far as the power of Congress is concerned. This is also borne out by the first and most authoritative commentary on our clause, written by Madison [187]. It does not follow that the Constitution elevated the doctrine of intellectual property, or any other patent concepts, beyond the plain terms of the clause, to the level of a basic law, the abolition of which would require an amendment to the Constitution. The American assembly in 1787 did not go nearly as far in this respect as the French in 1790. Exclusive rights of authors, and also of inventors, may exist under the common law, and they are certainly not abrogated but only “secured” by the Constitution; however, they do not rise to the dignity of “Rights of Man,” according to this view. This was a step backward, not only from the views of Diderot, but from those of some of the State copyright statutes enacted a short time before. Accordingly, Congress can constitutionally abrogate the common law doctrine of intellectual property. So long as this is not done, the common law doctrine exists, although a simultaneously existing statute, according to 186. Below, p. 759, No. 5. 187. The Federalist, No. 43, 747 the modified doctrine of Donaldson v. Becket, largely inactivates this doctrine. Another question is whether Congress can constitutionally abrogate both the common law right and all statutory rights, of an exclusive character, and reduce inventors to some purely theoretical expectations in accordance with the second draft for the constitutional clause, or even adopt the extreme view of the first draft. It has been said that Congress is limited in this respect, and that even a provision for working obligations, secured by compulsory licenses, would be unconstitutional for the reason that such provisions were usual in all previous “patent” systems, while the Constitution avoids reference to “patents” and speaks of “exclusive rights” [188]. However, no desire was expressed with any certainty, in 1787, to prevent Congress from adopting such patent limitations as were in general use at that time [189]. “Exclusive” rights are not necessarily “unconditional.” However, they are basically and diametrically different from “premiums” and the like, and of course, irreconcilable with the idea of no rights at all for inventions. Therefore, it would be unconstitutional for Congress to subject all patents to compulsory licensing as a matter of principle; such papers could be called “patents,” but would not partake of the nature of “exclusive rights,” which are the only ones authorized by the Constitution. An exclusive patent that can be made nonexclusive, upon reasonable terms, is in an entirely different classification, and is not, on its very face, an unconstitutional instrument. Of course, it is still a question, what terms are sufficiently reasonable. The state copyright statutes enacted before the constitution do not answer this question with any detail. However, the practice defined by the French law of 1762, which probably prevailed in other countries also; suggests a principle the equity of which can hardly be denied. 188. K. Penning, 11 JPOS 438. 189. Schechter, 22 Virg. L. R., 287, 309. 748 In accordance with the above, our present patent statutes should be interpreted as laws declaratory of the common law. Inferences frequently drawn from the opposite doctrine [190] are unjustified. It does not follow, however, that every doubt must be resolved in favor of the patentee or inventor. The Constitution is sufficiently specific about the public interest to preclude such a reading. However, the Constitution neither requires nor suggests an inequitable result like the Supreme Court holding that a patent when unsigned by neglect does not support an infringement suit. It is quite a step from the now prevailing denial of common law patent rights to Daniel Webster’s view. There are difficulties in applying the doctrine, as well as in denying it. The opponents of intellectual property were never able to explain why the originator of a pot should be vested with inherent property in the tangible thing, while the originator of a new design for pots should go unrewarded. The Anglo-American doctrine could never justify the property in a new esthetic idea, or in a new trade name, while property in a new technological idea was denied. On the other hand, the friends of intellectual property have seldom, if ever, explained why this property, according to the now accepted rule, should be limited to a term of years, when other property is perpetual. The idea forming the subject of such a right cannot be said to be perishable like a fruit, or apt to withdraw itself from human possession like an animal ferae naturae. This difficulty, the only serious one opposing the acceptance of the industrial property doctrine, can be overcome by established principles of property law. Both real and personal property, regardless whether in the nature of choses in possession or choses in action, are subject to the Statute of Limitation, which by now has become an institution of the common law. There is no good reason to hold that publication of a new esthetic or technological idea is tantamount to a dedication to the public; but such publication does start a period of pos- 190. For instance, the dissent of J. Black in the recent Mercoid case. 749 session by the public. It can be presumed, from the experience of the centuries, that such possession has the character of adverse possession. Thus, in the absence of a patent term fixed by a patent statute, the intellectual property held by an author or inventor is terminated by the general Statute of Limitations, the period of which begins to run at the moment of the first publication.
1469: Patent of John of Speyer [191[ There has been introduced into our community the art of bookprinting, and from day to day it is made more celebrated and frequent by the efforts, study and ingenuity of master John of Speyer, who preferred our city to all others to… live here and to exercise said art… so that… it will be enriched by numerous and excellent books. And since such invention, peculiar and proper to our time and entirely unknown to our elders, deserves every aid and favor, master John too should receive material aid, so that he may persevere so much more eagerly. In the same manner as usual in other useful arts, even in much inferior ones, the undersigned councillors have… decreed… that for five years next following there should be nobody whosoever who would, could, might or dare exercise said art of bookprinting in Venice and its territories, except master John himself. And whenever anybody should be found who dares against this decree to exercise said art and to print books he should be condemned to a fine, and loss of his instruments, and books printed by him. And under the same penalty nobody must… bring such books here for sale, when printed in other countries.
Libro Maggiore of the Provveditori del Comun, p. 89. Privileges of ten years are generally promised to the inventors of new arts and machines.
1545: Intellectual Property Statute [193] It is decreed that henceforth no printer of this city shall dare to print… any works… unless… the author or his heirs… have declared their consent and requested the printing. 191. Stolfi, App. No. I; Fulin, App. No. 1. 192. As reported by Romanin, vol. 4 p. 485. The actual wording, unfortunately, is unknown. 193. Stolfi, App. No. 13; Brown App. 1 No. 7. 750 1536: Privilege of Etienne Turquetti [194] Minutes of the Consular Government of Lyons. August 25, 1536. Mr. M. de Vauzelles, royal advocate, reported how Etienne Turquet and others, his partners, arranged to have workers come here, to establish enterprises in this city, to make fabrics of silk here, provided that there be obtained permission of the king and safe conduct for said help and workers, inasmuch as they will come from Genoa and other foreign countries; said workers to have franchises and tax exemptions like those at Tours… August 28, 1536… So resolved by the Consular Government, which will prosecute the matter with all power at its command. September 2, 1536. Etienne Turquet came to show royal letters which he says were granted to him by the council of the king, to establish… enterprises… for which said monarch gives safe conduct and tax exemption. The letter, drawn up by the judge Vauzelles… was found in order. Again, said Turquetti showed that a year has gone by since he started to prosecute this affair and he has expended… great costs… And since there may be others who, after said art and enterprises are established… will want to establish additional enterprises of said art… and have not carried any expense… he wishes that these should permit that said Turquet receive a contribution from them… Which was granted to him by the Consular government. May 17, 1537. (Turquet, the “first inventor and author of said establishments” obtains a loan from the city, for which he transfers his privilege to the city.) January 29, 1538. (Turquet obtains a new municipal loan, and tax exemption. Stipulated that, regardless of the transfer of the privilege, “said councilors… shall not allow any one to come to establish such enterprises… except when first agreeing with said Turquet and his partners to pay part of said costs…”) Nov. 9, 1540. (Turquet has a guild established for the new art.)
1551: Patent of Theses Indio [195] Henry, etc. We have received the humble petition of our dear and beloved Theses Mutio, Italian Gentleman, setting forth that upon the suggestion of certain notabilities of our kingdom he 194. Montfalcon vol. 2 p. 311-317. 195. Isambert vol. 13 p. 184, 185. 751 … came to reside here to cast and make glasses, mirrors, tubes, and other kinds of glassware, according to the manner of Venice. He was unable to take along his tools… and had to make new tools… at great cost and expense. And now, when all is prepared as required, and so that the work produced is generally found as beautiful and excellent as that imported from Venice, he fears that other glassmakers might copy his said work in the manner of Venice, and thereby frustrate his recovery of said cost and expense. Therefore… we give the said Theses Mutio the right, permission and express privilege that for the period of ten years next following he alone may make… glassware according to the manner of Venice and have the same for sale; we prohibit and forbid that any glassmakers… during said ten years shall make… or hold for sale any… glassware according to the manner of Venice, except those made by said Theses Mutio; or on his order; under penalty…
1699: Examination Statute [196] Regulations of the Royal Academy of Science, Article 31: The Academy shall, on order of the King, examine all machines for which privileges are solicited from His Majesty; it shall certify whether they are new and useful, and the inventors of those which are approved shall leave a model thereof… Article 34: Non-members of the Academy are not admitted to the meetings, except when introduced by the Secretary for the purpose of demonstrating any discoveries or any new machines.
1711: First Design Property Statute [197] Ordinance of the Consuls of Lyons (1711), approved by the Council of State (1712) and registered in Parliament (1717): All master merchants, working masters, journeymen and others employed in the manufacture of fabrics of silk, regardless of sex and age, are expressly prohibited and enjoined from taking, stealing, selling, lending, transferring and using directly or indirectly any designs which have been entrusted to them for manufacturing purposes.
1744: Second Design Property Statute [198] An Act by the Council of State, concerning the Manufacture of Silk in Lyons. Title 9. Art. 12. Further, said working masters are prohibited from selling, giving away, or lending, for any cause and under any 196. Histoire de L’Ac. Roy. des Sc., 1699, publ. 1706, p. 3. 197. Pouillet p. 4. 198. Pouillet p. 5. 752 pretext, any designs which have been entrusted to them for manufacturing purposes, under penalty of a fine … Art. 1.3. Further, all designers and other persons whosoever are prohibited from lifting and copying, or causing others to lift and copy, directly or indirectly, in any manner, any design on fabric either old or new, or on the design cards. of said fabrics, under penalty ..
1762: Statute on rights arising from patents [199] Louis, etc. The privileges, which have the object of .rewarding the efforts of inventors, and of stimulating those lying dormant in idle acquiescence, are not always as successful as can be expected; the reason being sometimes that those privileges, when granted for unlimited time, seem to be inheritable property rather than a personal reward to the inventor ; or that the privilege can often be assigned to persons who do not have the required capability; or finally, that the children, successors or assigns of the grantee, legally entitled to the enjoyment of the privilege, fail to acquire the necessary skill. Failure to use a privilege is objectionable, since it restricts liberty, while giving the public none of the goods that should be expected. Finally, the lack of publication of privileges granted often enables the grantee to extend the same and abusively to obstruct the work and labor of our subjects. For such ... reasons . 1) Trade privileges which have been or may be granted to individuals, either alone or in partnership with others, for fixed and limited times, shall be executed according to their form and tenor, until the term fixed therein. 2) All privileges which have been or may hereafter be granted indefinitely and without term, shall be fixed and reduced to the term of fifteen years of enjoyment, counting from the grant, and shall so remain, except for extension of said privileges, if such may be granted to the holder; however, we do not/intend to change anything in regard to concessions made by us in any property, be it in franc-almoign, in fee, or under yearly contribution. 3) Privileges not limited at the time of the grant, which by the preceding article are fixed to the term of fifteen years, and which have expired or entered the fourteenth or fifteenth year of their use, on the day of publication hereof, shall be extended for three years counting from the day of such publication, except where further extension may be obtained by the grantee. 4) It shall be lawful for the grantee to assign the use of his privilege to his children or grandchildren, inter vivos; but it 199. Rec. des Edits et Decl., vol. 4, 1776; Renouard p. 106. 753 shall be unlawful to assign it to others without special authorization by us. 5) In case of the decease of the grantee during the life of his privilege, his direct or collateral heirs, general or special legatees, or other assigns shall not be entitled to become holders of said privilege, except on confirmation obtained from us, after proof of their capability, notwithstanding any clauses whatsoever that may be found either in any granting instruments or in any subsequent instruments or acts, all of which are hereby expressly revoked. 6) All privileges the grantees of which have unsuccessfully attempted actual practice, or neglected use and exercise for one year, together with the orders, letters patent, patent certificates or other instruments containing such privileges, shall be void and revoked for all times, except where the exercise of such privileges was suspended for legitimate reasons or difficulties, to be justified by the grantee. 7) In order to make said privileges known to whom it may concern we wish that after the registration of said privileges in our Courts, there shall be sent a true copy thereof, by our Attorney General, to the Bailiff’s offices in whose territories they shall be used.
1767: .Diderot on intellectual Property [200] Letter on the Publishing Trade… The question. is whether a privilege should be classified as one of the obnoxious monopolies . You will say it is a monopoly in derogation of Common-Law rights. That is quite true. … And, you will add, it must have seemed harsh to concede to one what was refused to another. It seems harsh; but either that is clone, or no one can ever plead the cause of the first occupant and of legitimate possession, founded on risks, labor and advances. However, so that the derogation of Common-Law rights might not be excessive, they saw fit to limit the time of this monopoly. … The author is master of his work, or nobody is master of his goods. . . .
1776: Abolition of the guilds [201] Edict of February 5, 1.776… We want to abrogate those arbitrary institutions which… retard the progress of the arts, by multiple difficulties put in the way of an inventor; those guilds that dispute his right to use a discovery, never made by themselves… 200. Diderot, Oeuvres Compl., ed. 1877, vol. 18 p. 1-30. 201. Renouard p. 110. 754 1779: Re-establishment of the guilds [202] … These… institutions should not go to the point of limit-mg. the imagination and genius of an industrious man…
1787: Third Design Property Statute [203] An Act to regulate new designs composed by or for manufacturers of silk and gold-embroidered fabrics of the Kingdom. The King, having heard in council the petitions and memoranda of the corporations and communities of Tours and of Lyons concerning attacks made against their property and against the general interest of the manufacturers, by the copying and plagiarizing of designs, considers that the superiority which the silk manufactures of this kingdom have attained is principally due to the invention, the correctness and the good taste of designs; that the ambition which inspires the manufacturers and designers would disappear if they were not assured of the fruits of their labors; that this security, in accordance with the rights of property, has so far sustained this branch of manufacture and has won the preference that this manufacture enjoys abroad; he judges, therefore, that in order to preserve all their advantages, all silk manufactures of the kingdom should be under the regulations made for those of Lyons in 1737 and 1744, concerning the copying and plagiarizing of designs; and to provide the true inventors with a means for establishing, henceforth, in safe and unalterable manner their property, and for more and more inciting the talents by an exclusive enjoyment, proportioned in its duration to the costs and merits of the invention… he orders as follows: 1. Any manufacturer who has composed, or has had others compose a new design, shall have alone, to the exclusion of all others, the right to have it executed in fabrics of silk, embroidered silk, or mixtures of silk; the duration of this privilege shall be fifteen years in the case of fabrics for church furniture and adornment, and six years in the case of those… for… other uses, always starting from the day on which the formalities hereinafter prescribed have been fulfilled. 2. His Majesty prohibits all workers from selling, giving away, or loaning to others… any designs which have been entrusted to them for manufacturing purposes, by penalty… 3. Similarly His Majesty prohibits all designers and others… from lifting and copying directly or indirectly, any design on fabrics, old or new, or on design cards for such fabrics, by penalty… 4. (Types of fabric covered.) 202. Renouard p. 117; lsambert vol. 26 p. 77. 203. Isambert vol. 28 p. 380-382; Blanc p. 371-573. 755
6. (If not so registered, not protected) 7. A Manufacturer who has fulfilled the formal requirements of article 5 shall be deemed the sole proprietor of the design…; therefore it shall be open to him to prosecute, before the industrial police court of the infringer’s domicil, both those who have others lift, copy or trace the design, and those who have it executed; to ask that the penalties of articles 2, 3 and 4, above, be pronounced against them, and that, the fabrics be seized, both in the hands of the manufacturer who had them executed, and in the hands of any dealer who has them for sale; provided that the dealer may take recourse, for the value of the goods, damages and interests, if any, against the manufacturer who sold the fabrics made with lifted, copied or traced designs. 8. His Majesty prohibits all manufacturers from having others execute in fabric… any design-executed on paper or otherwise, without assuring himself whether the design on paper has not been executed previously in fabrics; therefore, any manufacturer who executes in fabric a paper design copied from fabric., infringes article 3…
1790: Industrial Property Statute [204] Law on Useful Discoveries and on Means for Securing the Property therein to the Authors. Adopted December 31, 1790; enacted January 7, 1791. The National Assembly, considering that any new idea, the manifestation or development of which may become useful to society, belongs basically to the one who has conceived it, and that it would be a violation of the Rights of Man, in their essence, not to regard an industrial discovery as property of its author; Considering at the same time how much the lack of a positive and authentic declaration of this truth. may have contributed, until now, to discourage French industry, causing various distinguished experts to emigrate, and many new inventions to pass abroad, while this country should have drawn the first benefits thereof ; 204. Lois & Actes du Gouvernernent, vol. 2, 1790-91, publ. 1806; also in the French Patent Reports, first series, vol. I p. 28; 34. 756 Considering filially that all principles of justice, public order, and national interest command. imperatively that this Assembly, forthwith, should state the opinion of the French people concerning this kind of property, by a law to consecrate it and to protect it, Decrees as follows. 1. Any discovery or new invention, in any kind of industry, is the property of its author. Consequently the law guarantees to him the full and complete enjoyment thereof, in the manner and for the time hereinafter determined. 2. Any means for adding to any manufacture a new kind of perfection shall be regarded as an invention. 3. The first person to import a foreign discovery into France shall enjoy the same advantages as if lie were the inventor thereof. 4. Any person who wants to conserve or to secure to himself an industrial property of the kind referred to in the preceding articles, shall (first) file… a written declaration stating whether the subject involved is an invention, an improvement, or only imported; (second) file… an exact description of the principles, means and processes which constitute the invention, as well as the plans, cuts, drawings, and models which may have reference thereto .. . 5, 6. (Other recompensations authorized, if the inventor waives a patent) 7. In order to secure to any inventor the property and temporary enjoyment of his invention, there shall be delivered to him a title or patent, according to the form indicated in the Regulations which shall be made for the carrying out of this decree. 8. (Patents to be for 5, 10 or 15 years at the choice of applicant) 9. (Import patents to expire with foreign patent) 10. (Patents to be delivered through local authorities) 11. (Publication of patents) 12. (Remedies for infringement) 13. (Plaintiff liable for damages if he fails to prove his case) 14. (Full right to use, license or assign the patent) 15. At the expiration of any patent, since the discovery or invention ought to belong to society, the description thereof shall be made public, and the use thereof shall be permitted throughout the country… 16. (Patents declared void if the description is deceptive or incomplete; if the subject has been described in a prior printed publication; on failure to work the invention within two years except where good reason is shown; and if a subsequent foreign patent is taken out by the.patentee.) 757
1672: Mercantilist Rule in Connecticut [205] There shall be no monopolies granted or allowed amongst us but of such new inventions as shall be judged profitable for the country and for such time as the general court shall judge meet.
1672: Intellectual Property Rule in Massachusetts [206] No printer shall print any more copies than are agreed and paid for by the owner of the said copy or copies, nor shall he nor any other reprint or make sale of any of the same, without the said Owner’s consent, upon the forfeiture and penalty…
1783-6: Preambles of Copyright Statutes of the States [207] CONNECTICUT 1783: Whereas it is perfectly agreeable to the principles of natural equity and justice that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning… DELAWARE : No Statute GEORGIA 1786: Whereas the principles of natural equity and justice require that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning… MARYLAND 1783: Whereas printers… may take the liberty of printing… books… without the consent of the authors and proprietors of such books to their great injury… MASSACHUSETTS 1783: Whereas… the principal encouragement… to make great and beneficial exertions… must exist in the legal security of the fruits of… study and industry… and as such security is one of the natural rights of all men, there being no property more peculiarly a man’s own than that which is produced by the labor of his mind… NEW HAMPSHIRE 1783: Substantially same as Massachusetts. NEW JERSEY 1783: Whereas learning tends to the. embellishment of human nature… and as it is perfectly agreeable to the principles of equity that men of learning… should have the profits that may arise from the sale of their works secured to them… NEW YORK 1786: Same as Connecticut. NORTH CAROLINA 1785: Whereas nothing is more strictly a man’s own than the fruit of his study, and it is proper that men should be encouraged to pursue useful knowledge by the hope of re- 205. F. W. Dahn, 3 J POS 346. 206. Solberg, Cop. En. p. 113. 207. Solberg, Cop. En., First Part. 758 ward; and as the security of literary property must greatly tend to encourage genius, to promote useful discoveries, and to the general extension of arts and commerce… PENNSYLVANIA 1784: Substantially same as Maryland. RHODE ISLAND 1783: Substantially same as Massachusetts. SOUTH CAROLINA 1784: No Preamble. VIRGINIA 1785: No Preamble.
1787: Proposals for Constitutional Patent Clause [208] 1. To secure to literary authors their copy rights for a limited time. (Submitted by Madison, according to his Journal). 2. To secure to literary authors their copy rights for a limited time. To encourage by (proper) premiums and provisions the advancement of useful knowledge and discoveries. (Recorded by the Documentary History submitted by Madison, without “proper,” according to another source.) 3. To secure to literary authors their copy rights for a limited time. To secure to inventors of useful machines and implements the benefits therefor, for a limited time. (Submitted by Madison according to the Documentary History.) 4. To grant patents for useful inventions; to secure to authors exclusive rights for (a) limited time. (Submitted by Pinkney according to Madison’s journal, and, without “a,” according to another source.) 5. To secure to authors the exclusive rights to their performances and discoveries. (Submitted by Pinkney according to his Observations).
1813: Jefferson on Intellectual Property .Letter to Isaac McPherson, August 13, 1813 … It has been pretended by some, and in- England especially, that- inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then if an idea, the fugitive fermentation of an individual brain, 208. K, Fenning, I I JPOS 438, 759 could, of natural right, be claimed in exclusive and stable property. If nature has made one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual. may exclusively possess so long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less because every other possesses the whole of it. He who receives an idea from me receives instruction himself without lessening mine, as he who lights his taper at mine receives light without darkening mine. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature. When she made them like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being; incapable of confinement or exclusive appropriation. Inventions then cannot in nature be a subject of property. .Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done according to the will and convenience of the society, without claim or complaint from anybody. It is a fact, as .far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention are as fruitful as England in new and useful devices. 760 |
