History of patent law
|Intellectual property law|
|Sui generis rights|
|By region / country|
|By specific subject matter|
The history of patents and patent laws is generally considered to have started in Italy with a Venetian Statute of 1474 which was issued by the Republic of Venice. They issued a decree by which new and inventive devices, once they had been put into practice, had to be communicated to the Republic in order to obtain legal protection against potential infringers. The period of protection was 10 years.
Patents, however, existed before the Statute of 1474. In England grants in the form of “letters patent” were issued by the sovereign to inventors who petitioned and were approved: a grant of 1331 to John Kempe and his Company is the earliest authenticated instance of a royal grant made with the avowed purpose of instructing the English in a new industry. The first Italian patent was actually awarded by the Republic of Florence in 1421, and there is evidence suggesting that something like patents was used among some ancient Greek cities. In 500 BC, in the Greek city of Sybaris (located in what is now southern Italy), "encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year." 
History by country
Athenaeus, writing in the third century CE, cites Phylarchus in saying that in the Greek city of Sybaris (located in what is now southern Italy), exclusive rights were granted for one year to creators of unique culinary dishes.
In Australia, the system of granting patents in the Australian Colonies is based upon British law, and can be traced back to the English Statute of Monopolies of 1623. This was enacted in 1624. Prior to the Colonial states enacting their own legislation in the mid 19th Century and forming their own Patent Offices, inventors applied to England for patent registration and protection.
When legislatures were established in the Australian Colonies, people could apply (petition the parliament) for a patent to be granted by the Governor of the colony, by way of a Private Bill. The first of these was South Australian Private Act No.1 of 1848, granted to Andrew John Murray of Adelaide, S.A. for "An improved windlass", on the 20th June 1848, for a period of 10 years. A further three Private Acts were granted in South Australia; and several were granted in Western Australia.
The first patent act in Australia, other than private acts, was introduced into New South Wales in 1852 (coming into force on 10 January 1854.) Victoria proclaimed its first Patent Act in 1854, with the length of the grant being for 14 years.
The administration of the States Patents Acts (NSW, Victoria, Queensland, SA, WA and Tasmania) was transferred to the Commonwealth of Australia from 1 June 1904. IP Australia is the Australian Government agency responsible for administering patents, as well as trade marks, designs and plant breeder’s rights in Australia.
Patents were systematically granted in Venice as of 1450. These were mostly in the field of glass making. As Venetians emigrated, they sought similar patent protection in their new homes. This led to the diffusion of patent systems to other countries.
In England the Crown issued letters patent providing any person with a monopoly to produce particular goods or provide particular services. Apart from the grant to John Kempe and his company mentioned above an early example of such letters patent was a grant by Henry VI in 1449 to John of Utynam, a Flemish man, for a 20 year monopoly for his invention.
This was the start of a long tradition by the English Crown of granting of letters patent which granted monopolies to favoured persons (or people who were prepared to pay for them). Blackstone (same reference) also explains how "letters patent" (Latin "literae patentes", "letters that lie open") were so called because the seal hung from the foot of the document: they were addressed "To all to whom these presents shall come" and could be read without breaking the seal, as opposed to "letters close", addressed to a particular person who had to break the seal to read them.
This power was used to raise money for the Crown, and was widely abused, as the Crown granted patents in respect of all sorts of common goods (salt, for example). Consequently, the Court began to limit the circumstances in which they could be granted. After public outcry, James I of England was forced to revoke all existing monopolies and declare that they were only to be used for "projects of new invention". This was incorporated into the Statute of Monopolies in which Parliament restricted the Crown's power explicitly so that the King could only issue letters patent to the inventors or introducers of original inventions for a fixed number of years.
In the reign of Queen Anne (1702–1714) lawyers of the English Court developed the requirement that a written description of the invention must be submitted . These developments, which were in place during the colonial period before independence of the U.S., were the foundation for patent law in the United States, New Zealand and Australia.
In the United Kingdom, the Patents Act 1977 harmonised UK patent law with the European Patent Convention. Consequently, UK patent law is no longer based on the Statute of Monopolies, but an amalgam of UK and European practices. Coincidentally, the current length of UK/EU patents is still 20 years, similar to that of the original declaration by Henry VI on the manufacture of stained glass (destined for Eton College) .
King Henry II introduced the concept of publishing the description of an invention in a patent in 1555. The first patent "specification" was to inventor Abel Foullon for "Usaige & Description de l'holmetre", (a type of rangefinder.) Publication was delayed until after the patent expired in 1561.
In France, patents were granted by the monarchy and by others institutions like the "Maison du Roi" and the Parliament of Paris. Most often novelty was examined by the Academy. Digests were published irregularly starting in 1729 with delays of up to 60 years. Examinations were generally done in secret with no requirement to publish a description of the invention. Actual use of the invention was deemed adequate disclosure to the public. The modern French patent system was created during the Revolution in 1791. Patents were granted without examination since inventor's right was considered as a natural one. Patent costs were very high (from 500 to 1500 francs). Importation patents protected new devices coming from foreign countries. The French patent law was revised in 1844 : patent cost was lowered and importation patents were abolished. In the 1860s, the French Patent system was contested by liberal economists. Another reform in 1902 allowed a better publication of patents.
During the period of America’s Thirteen Colonies a few inventors were able to obtain monopolies (i.e. "patents") to produce and sell their inventions. These monopolies were granted by petition to a given colony’s legislature.
In 1641, Samuel Winslow was granted the first patent in North America by the Massachusetts General Court for a new process for making salt. In 1646, the Province of Massachusetts Bay granted inventor Joseph Jenks Sr. the exclusive right to set up water mills using a speedier engine he had developed for making edged tools, such as scythes. His monopoly was to run for 14 years.
The Patent and Copyright Clause of the US Constitution was proposed in 1787 by James Madison and Charles Cotesworth Pinckney. In Federalist No. 43, Madison wrote, "The utility of the clause will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of the individuals."
The first Patent Act of the U.S. Congress was passed on April 10, 1790, titled "An Act to promote the progress of useful Arts". It empowered (section 1) "the Secretary of State, the Secretary for the department of war, and the Attorney General, or any two of them" to approve the grant of a patent to an inventor fulfilling the appropriate formalities "if they shall deem the invention or discovery sufficiently useful and important". The first three members of this Patent Commission were Secretary of State Thomas Jefferson, Secretary of War Henry Knox, and Attorney General Edmund Randolph.
The first patent was granted on July 31, 1790 to Samuel Hopkins of Philadelphia for a method of producing potash (potassium carbonate), an essential ingredient used in making soap, glass, and gunpowder (Carnegie Library of Pittsburgh, ). The method involved heating ashes from a wood fire to burn off any residual soot, thus making a more concentrated chemical.
The earliest law required that a working model of each invention be submitted with the application. Patent applications were examined to determine if an inventor was entitled to the grant of a patent. The requirement for a working model was eventually dropped.
The Patent Law was revised in 1793. The rate of patent grants had grown to about 20 per year and the time burden on the Secretary of State was considered to be too burdensome. Patent applications were no longer examined. Patents were granted simply by submitting a written description of an invention, a model of the invention, if appropriate, and paying a fee of $30 ($1000 in 2006 US dollars). Currently, (35 U.S.C. Sec. 112) requires a written description of the invention only.[clarification needed] The Commissioner of the USPTO may ask for additional information, patent drawings, or diagrams if the description is not clear.
The Patent Board was replaced by a clerk in the Department of State. James Madison, Secretary of State, created a separate Patent Office within the State Department and he appointed Dr. William Thornton as its first superintendent in May 1802. On May 5, 1809 Mary Dixon Kies became the first woman to be awarded a U.S. patent. In that same year a Philadelphia court ruled that all patent holders were "in violation of public rights." The ruling was overturned a short time later. In 1810, the Patent Office moved from the Department of State to Blodgetts Hotel. In the same year, they opened the patent model storage to the general public.
The patent laws were again revised in 1836. The examination of patent applications was reinstituted. The number of patents granted per year had grown to about 700. Also in 1836 the government began construction of what is now called the Old Patent Office Building, where the offices and models were housed from 1840 until 1932. The Patent Office is now housed in its own complex of buildings in Alexandria, Virginia.
The first 10,000 patents issued by the USPTO from July 1790 to July 1836 were destroyed in a fire in December 1836. About 2800 of them were later recovered, but the majority of them are still missing. The recovered patents are now called X-Patents because their patent numbers end with an "X."
In 1870 Congress passed "An Act to revise, consolidate, and amend the Statutes relating to Patents and Copyrights" (16 Stat. 198). This law mainly reorganized and reenacted existing law, but also made some important changes, such as giving the commissioner of patents the authority to draft rules and regulations for the Patent Office.
Starting in 2005 the United States Congress debated shifting the country to a first-to-file rule, limit damages for patent violations, and provide patent defendants more methods for defense. This culminated in the passage of the Leahy-Smith America Invents Act in 2011.
- Intellectual property
- History of copyright law
- History of United States patent law
- United States patent case law
- Scire facias
- Helmut Schippel: Die Anfänge des Erfinderschutzes in Venedig, in: Uta Lindgren (Hrsg.): Europäische Technik im Mittelalter. 800 bis 1400. Tradition und Innovation, 4. Aufl., Berlin 2001, S.539-550 ISBN 3-7861-1748-9
- "Wolfgang-Pfaller.de: Patentgesetz von Venedig" (in German / Italian).
- Terrell on Patents, 8th edition edited by J R Jones, London (Sweet & Maxwell) 1934.
- E Wyndham Hulme, The History of the Patent System under the Prerogative and at Common Law, Law Quarterly Review, vol.46 (1896), pp.141-154.
- Terence Kealey, The Economic Laws of Scientific Research, St. Martin's Press, 1996
- Gregory A Stobbs, Software Patents, Aspen Publishers, 2000, ISBN 0-7355-1499-2, page 3.
- Charles Anthon, A Classical Dictionary: Containing An Account Of The Principal Proper Names Mentioned in Ancient Authors, And Intended To Elucidate All The Important Points Connected With The Geography, History, Biography, Mythology, And Fine Arts Of The Greeks And Romans Together With An Account Of Coins, Weights, And Measures, With Tabular Values Of The Same, Harper & Bros, 1841, page 1273.
- Phylarchus of Naucratis, "The Deipnosophists, or, Banquet of the Learned of Athenæus", Translated from Ancient Greek by H.Bohn 12:20, p.835
- Brenda M. Rimmer, Science Reference and Information Service International guide to official industrial property publications 3rd edition. London : British Library, 1992 p. 7 (1.1)
- Barton Hack "A history of the patent profession in colonial Australia, presented at the Annual Conference of the Institute of Patent Attorneys of Australia, Brisbane, Queensland, 29 to 31 March 1984" Melbourne : Clement Hack & Co., 1984 ISBN 0-9590266-0-6 page 9
- http://guides.slv.vic.gov.au/content.php?pid=87344&sid=649913 Patents Research Guide - State Library of Victoria retrieved 16 March 2010
- Christine MacLeod, Inventing the Industrial Revolution: The English Patent System, 1660-1800, Cambridge University Press, 2002, ISBN 0-521-89399-2, ISBN 978-0-521-89399-2, page 11.
- M. Frumkin, "The Origin of Patents", Journal of the Patent Office Society, March 1945, Vol. XXVII, No. 3, pp 143 et Seq.
- "Blackstone's Commentaries". Retrieved 2008-02-24. "THE king's grants are alſo matter of public record. For, as St. Germyn ſays, the king's excellency is ſo high in the law, that no freehold may be given to the king, nor derived from him, but by matter of record. And to this end a variety of offices are erected, communicating in a regular ſubordination one with another, through which all the king's grants muſt paſs, and be tranſcribed, and enrolled; that the ſame may by narrowly inſpected by his officers, who will inform him if any thing contained therein is improper, or unlawful to be granted. Theſe grants, whether of lands, honours, liberties, franchiſes, or ought beſides, are contained in charters, or letters patent, that is, open letters, literae patentes: ſo called becauſe they are not ſealed up, but expoſed to open view, with the great ſeal pendant at the bottom; and are uſually directed or addreſſed by the king to all his ſubjects at large. And therein they differ from certain other letters of the king, ſealed alſo with his great ſeal, but directed to particular perſons, and for particular purpoſes: which therefore, not being proper for public inſpection, are cloſed up and ſealed on the outſide, and are thereupon called writs cloſe, literae clauſae; and are recorded in the cloſe-rolls, in the ſame manner as the others are in the patent-rolls..."
- Nowotarski, Bakos, “A Short History of Private Patent Examination”, Insurance IP Bulletin Oct. 2009
- Frank D. Prager, “Proposals for the Patent Act of 1790", Journal of the Patent and Trademark Office Society, March 1954, vol XXXVI, No. 3, pp 157 et Seq., citing J. Isore in Revue Historique de Droit Francais, 1937 pp. 117 et Seq.
- Gabriel Galvez-Behar, La République des inventeurs. Propriété et organisation de l'innovation en France, 1791-1922, Presses universitaires de Rennes, 2008, ISBN 2-7535-0695-7, ISBN 978-2-7535-0695-4.
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- History of the United States Patent Office, The Patent Office Pony, A History of the Early Patent Office, Chapter 2 -- Invention Comes to British Colonial America .
- Online at Library of Congress: "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875": First Congress, Session II, chapter VII, 1790: "An Act to promote the progress of useful Arts".
- Chap. XI. 1 Stat. 318 from A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875". Library of Congress, Law Library of Congress. Retrieved Sept. 4, 2009.
- Editors, Time-Life (1991). Inventive Genius. New York: Time-Life Books. p. 11. ISBN 0-8094-7699-1.
- Chap. CCCLVII. 5 Stat. 117 from "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 -1875". Library of Congress, Law Library of Congress. Retrieved Oct. 19, 2009.
- "National Portrait Gallery Building Chronology". Archived from the original on 2007-04-25. Retrieved 2007-04-27.
- Chap.CCXXX. 16 Stat. 198 from "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875". Library of Congress, Law Library of Congress. Retrieved Oct. 19, 2009.
- Kenneth W. Dobyns, The Patent Office Pony; A History of the Early Patent Office, Sergeant Kirkland's Press 1994. 
- Howard B. Rockman, Intellectual Property law for Engineers and Scientists.
- Bugbee, Bruce W. Genesis of American Patent and Copyright Law. Washington, D.C.: Public Affairs Press (1967).
- Christine MacLeod, Inventing the Industrial Revolution: The English patent system, 1660–1800, Cambridge University Press.
- Galvez-Behar, G. La République des inventeurs. Propriété et organisation de l'innovation en France, Presses universitaires de Rennes, 2008.
- First patents
- X Series : U.S. Patent X000,001 "Improvements in making pot ash and pearle ash"
- 1st Numerical : U.S. Patent 0,000,001 "Traction Wheel"
- 1st Design : U.S. Patent D000,001 Script font type
- 1st Reissued : U.S. Patent RE00,001 "Grain Drill"