Prager History of IP 1545-1787 JPOS 1944

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1. Introduction

Many modern writers are inclined to consider the English Statute of

Monopolies as the only important antecedent of existing patent laws [1].

However, we find occasional remarks that the patent laws of France, along with

those of England and the United States, are branches of a single system of

jurisprudence [2], and that they all go back to a system of privileges, developed in

Venice [3].

When investigating this, we actually find that for centuries before the

American and French Revolutions of 1787 and 1789, France had a patent law, at

least as well developed as the parallel English law [4], although industrially,

England was much more successful than France; and we can trace the French and

English systems into one that grew up in the Republic of Venice, between 1450

and 1550 [5].

1. For instance: Robinson on Patents, 1890, vol. I, p. 15; in Germany: M. Wassermann, D. Pat.R., 1910, p. 5; in Italy: E. Piola-Caselli, in Dig. Ital., under Privative Industr., 1913, p. 8.

2. W. Phillips. Law of Patents, 1837, p. 27.

3. Kohler, Lehrbuch d. Pat. R., 1908, p. 2; E. Luzzato, Tratt. Gen. d. Privative Industr., 1914,vol. 1, p. 20-27.

4. E. Blanc, Contrefacon. 1838; Isambert, Anc. Lois Fr.; J. Isore, in Revue Hist. de Dr. Fr. et Etr., 1937, p. 94; Malapert, in Journal des Economistes, 1878; J.-B. Montfalcon, Hist. Mon. dela Ville de Lyon, vol. 2, 1866; E. Pouillet, Dessins, 1903; Recueil des Edits et Decl., 1776; A.Renouard, Brevets, 1825.

5. Archivio Veneto; Atti e Mem. del R. 1st. Veneto; Horatio F. Brown, The Venetian Printing

Press, 1891; B. Cecchetti, Vetraria Veneziana, 1874; R. Fulin in Archivio Veneto, vol. 23, 1882;F. C. Lane, Venetian Ships and Shipbuilders of the Renaissance, 1934; N. Stolfi, Prop. Lit. etArtist., 1916; G. Zanetti, Dell’ Origine di Alcune Arti Princ. appr. i Veneziani, 1841.

711

The early patent documents of Venice and France arepresented herewith, in

E n g lis h tr a n s la tio n . O n th e b a s is o f th e s e d o c u m e n ts , s up p le m e n te d b y th e w e ll-

k n o w n E n g lis h s ta tu te s , w e c a n h o p e to g e t a b e tte r h is to r ic a la p p r o a c h to o u r o w n

patent system.

Such a historical approach has more than purely scientific interest. There

are several obscurities in our constitutional patent clause [7]; and the formative

period is so devoid of records concerning this clause [8] that extrinsic evidence,

from foreign sources, has distinct significance for a proper construction of the

clause.

2. The Beginnings in Venice.

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 rightsand 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

w a r s w ith G e n o a ; a n d f in a lly o c c u p ie d a g r e a t p a r t o f th e r ic h p la in s a n d to w n s





ofnorthern 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, TheEnglish 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

h a n d s o f a n a r i s t o c r a t m i n o r i t y , e x c l u d i n g b u t g e n e r a l l y n o t e x p l o i t i n g t h e p e o p l e .

A l l t h i s s a n k i n t o o b l i v i o n , g r a d u a l l y , a f t e r t h e d i s c o v e r y o f t h e s e a r o u t e

t o t h e E a s t, a r ou n d t h e C a pe o f G o o d H o p e . T h e m e m o r y o f V e n i c e w a s e v e n

m o r e d e e p l y o b l i t e r at e d a f t e r t h e c o l o n i za t i o n a n d r i s e o f A m e r i c a . P r e v i o u s l y ,

h o w e v e r , V e n i c e h a d l e f t a d e f i n i t e i m p r i n t o n t h e p o l i t i c a l , l e g a l a n d c u l t u r a l

in s titu tio n s o f E u r o p e .

In Venice as throughout medieval Europe, most of commerce and the arts was

d o m i n a t e d b y g u i l d s [ 1 0 ]. A g ui l d w a s a g r ou p o f m a s t e r s m a i n t a i n i n g a

m o no p ol y o v er t h e i r t r a d e [ 1 1 ] . T h e y e f f e c t e d t h i s b y f i x i n g p ri c e s

a n d s t a n d a r d s ; t r a d i n g c o l l e c t i v e l y w i t h o t h e r g r o u p s , i n c l u d i n g t h e t a x i n g p o w e r s ;

d e f e n d in g th e ir tr a d e a g a in s t m a s te r s e ls e w h e r e , a n d a g a in s t la b o r e r s a n d

journeymenever ywh ere ; and pro vid ing som e sec uri ty for age d and disa bled

m e m b e r s o f t h e g u i l d . I n e a r l y t i m e s , t h e s oc i a l s e c u r i t y f u n c t i o n h a d b e e n w e l l i n

th e f o r e g r o u n d . L a te r o n , th e r e g u la tio n o f p r ic e s , s ta n d a r d s a n d w a g e s b e c a m e th e

m a i n f u n ct i o n o f t h e g u i l ds . T h i s l i n e o f d e v e lo p m en t w a s a p p r o x i m a t e l y t h e s a m e

in V e n ic e a s in a ll o th e r c o u n tr ie s , b u t r e a c h e d a m a tu r e s ta g e a t a n e a r ly tim e .

F u r t h e r m o r e , i n V e n i c e l i k e m o s t o t h e r s t a t e s , o t h e r t h a n E n g l a n d , t h e g u i l d s w e r eg r a d u a l l y d e g r a d e d t o s t a t e - s u p e r v i s e d , a d m i n i s t r a t i v e a g e n c i e s . C o m p l e t e

s t a t e c o n t r o l w a s e s t a b l i s h e d i n A l e x a n d r i a a b o u t 1 0 0 B . C . ; i n C o n s t a n t i n o p l e

about 800 A. D.; in Venice about 1300 ; and in France about 1650.

E v e n w h e n f u l l y c o n t r o l l e d , t h e g u i l d s w e r e o f t e n i n s h a r p c o n f lic ts w ith th e

s t a te . A b ov e a l l , t h e p r ob l em o f f o r e i g n e r s w a s c o n t e s t e d . L i k e E n g l a n d [ 1 2 ] , t h e

R e p u b li c o f V e n i c e i n v i t e d s t r a n g e r s a t a n e a r l y t i m e [ 1 3 ] . A b o u t 13 50 ,

c itiz e n s h ip w a s th r o w n o p e n to a ll w h o h a d r e s id e d

1 0 . A s h l e y , I n t r o d u c t i o n t o E n g l i s h E c o n o m i c H i s t o r y , 1 9 2 3 , V o l . 2 , p . 6 7 - 1 2 3 a n d L i t e r a t u r ec i t e d ; M . S t .- L e o n , H i s t . d e s c o r p . d e m é t i e r s , 1 9 2 2 ; G . M o n t i c o l o , I c a p i t o l a r i d e l l e a r t eVeneziane, 1896-1914; Romanin, vol. I p. 61; vol. 2 p. 389-391. 11. H. See, Economical and SocialConditions in France, 1927, p. 131.

12. Hulme, 12 L. Q. R. p. 142, 143.





1 3 . M o l m e n t i v o l . I p. 104 , 120; R om ani n vol . I p. 122.

713

i n V e n i c e a c e r t a i n n u m b e r o f y e a r s [ 1 4 ] ; a v e r y w i s e a n d u n us u al l aw . T h e g u il d s,

on the other hand, were always opposed to strangers.

The State attempted to promote the arts in a number of ways, in addition to

e n c o u r a g in g th e e n tr y o f f o r e ig n e r s , a n d r e g a r d le s s o f th e g e n e r a l p o lic y w h ic ha llo w e d a n d e v e n f o r c e d th e g u ild s to re m a in sta tio n a r y . A s e a r ly a s 1 3 3 2 , V e n i c e

m a i n t a i n e d a s p e c i a l p r i v i l e g e f u n d , a s s h o w n b y a d o c u m e n t o f t h a t y e a r [ 1 5 ] ,

r e c i t i n g a p a y m e n t f r o m t h a t f u n d t o o n e B a r t o l o m e o V e r d e , w h o h a d p r o m i s e d t o

e r e c t a w in d m ill. V e r d e h a d s ix m o n th s to c o m ple te h is in s ta lla tio n a n d to m a k e it

work. On failure to do so, he had to refund the privilege money at once; otherwi se,

w ith in 1 2 y e a r s . H e h a d to f u r n is h s e c u r ity . V e r d e w a s n o t n e c e s s a r ily th e fir s t

inv ent or of t his kin d of mills. He was probably the only one who knew how to build

them, and the government hoped to spread and promote t his k now led ge. Pay men ts of

the same kind were repeatedly made in the fifteenth century, to persons claimingknowledge of either established [16] or new [17] systems ofmillwork ; 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 ar ts. Under

th e g u ild s y s te m , a ll s u c h r e c o g n itio n w a s d if f e r e n t, a n d in s o m e r e s p e c ts h a d to b e

different from what it is in a free economy [19]. Whoeverpropose d new tec hnol ogy

n e e d e d , i n t h e f i r s t p l a c e , a s p e c i a l l y c r e a t e d p o w e r o r l i c e n s e t o i n f r i n g e

e x is tin g g u ild m o n op o lie s b y m a k ing , s e llin g o r u s in g th e n e w in v e n t io n . S u c h

s p e c i a l l y c r e a t e d r i g h t s w e r e c a l l e d p r i vi l e g es . T h e y w e re n o t , o r i gi n a ll y ,e x c l u s iv e r ig h ts . T h e y w e r e g r a n te d a n d r e v o k e d b y th e s ta te , d e p e n d in g o n w h a t

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 inArchivio Ven. vol. 29 p. 29, 30; Romanin vol. 3 p. 350; vol. 6 p. 450.

1 5 . Z a n e t t i p . 6 8 , 6 9 ( f u l l t e x t ) ; B . C e c c h e t t i i n A r c h i v i o V e n . v o l . 2 9 p . 2 8 9 - 2 9 2 ( d i s c u s s i o n ) .

16. Cecchetti in Archivio Ven. vol. 29 p. 283-285.

1 7 . C e c c h e t t i i n A r c h i v i o V e n . v o l . 2 9 p . 2 9 2 .

18. Lane p. 56-58; 64-70; 109.1 9 . H u l m e 1 2 L . Q . R . p . 1 4 1 - 1 5 0 ; R e n o u a r d p . 1 0 2 - 1 0 5 .

714

n e s s w e r e i n v e s t i g a t e d , a t b e s t , i n a n i n c i d e n t a l w a y ; t h e m a i n r e q u i r e m e n t w a s

u t i l i t y . D i s c l o s u r e t o o k p l a c e b y a c t u a l u s e , r a t h e r t h a n b y t he f i l in g of a wr i t t e n

s p e c i fi c a t i o n i n a p u b l i c o f f i c e . T h e p r i v i l e g e d i d n o t n e c e s s a r i l y g o t o t h e f i r s t

i n v e n t o r o r i m p o r t e r o f a n e w a r t ; s o m e t i m e s i t w a s t h r o w n o p e n t o t h e p u b l i c .

T h i s h a p p e n e d , f o r i n s t a n c e , i n 1 3 0 1 , w h e n V e n i c e “ c o n c e d e d t o e v e r y b o d y t h e

m a k i n g o f g l a s s e s f o r t h e e y e s , f o r r e a d i n g ” [ 2 0 ] ; s u c h g l a s s e s h a d b e e n i n v e n t e da b r o a d , a s h o r t t i m e b e f o r e , a n d a s t a t u t e o f 1 3 0 0 h a d e x p r e s s l y p r o h i b i t e d t h e g l a s s

m a k e r s ’ g u i l d f r o m m a k i n g o r s e l l i n g t h e m [ 2 1 ] .

T h e e p o c h - m a k in g in v e n tio n o f ty p o g r a p h y [ 2 2 ] c o llid e d w ith g u ild m o n o p o lie s





w h e r e v e r t h e g u i l d s w e r e s t r o n g . I n F l or e n c e , t he g u i l d o f t h e c o p y i s t s a n d

c a l l i g r a p h e r s s h o w e d a c t i v e r e s i s t a n c e i n 1 4 7 4 [ 2 3 ] ; a n d i n A u g s b u r g , t h e w o o d

engravers had to be bought off, in 1480 [24]. No guild re si st an ce is re co rd ed in th e

A n n a l s o f V e n i c e . W h e n J o h n o f S p e y e r , a G e r m a n p r i n t e r , e s t a b l i s h e d

h i m s e l f o n t h e L a g u n e , i n 1 4 6 9 , h e o b t a i n e d , n o t o n l y a p r i v i l e g e o r r i g h t t o p r i n t ,

but an actua l pate nt, an exclu sive right , with out oppos iti on [25].

T h i s w a s t h e f i r s t p a t e n t o f m o n o p o l y p r e s e r v e d i n a c t u a l r e c o r d s o f V e n i c e , s o fa r a s k n ow n a t pr e s e n t . T h e r e i s a r e m a r k i n J o h n’ s p a t e n t t h a t i t

w a s “ u s u a l ” t o g r a n t s u c h m o n o p o l i e s ; b u t n o e a r l i e r g r a n t o f t h i s k i n d i s k n o w n ,

a t p r e s e n t . I t m a y b e n o t e d i n p a s s i n g t h a t s u c h a “ u s u a l ” p r o c e du r e , i n V e n i c e ,

h a d th e f o r c e o f c u s to m a r y la w o r c o m m o n la w [ 2 6 ] .

A f e w y e a r s l a t e r t h i s c u s t o m a r y l a w w a s . c o n f i r m e d b y a w r i t t e n

pronoun cemen t [27], in the nature of a statu te or adm in is tra ti ve dec re e. Thi s was

t he f ir st w ri tt en p at e n t l a w k n o w n . I t p r e c e d e d t h e E n g l i s h S t a t u t e

o f M o n o p o l i e s b y 1 5 0 y e a r s . I t w a s m o r e m o d e r n , i n t h a t20. Cecchetti, Vet. Ven., p. 13.

21. Cecchetti in Atti 1871-2 p. 1692-3.

2 2 . J . C . O s w a l d , A H i s t o r y o f P r i n t i n g , 1 9 2 8 .

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 p r o v id e d f o r p a te n ts a s a m a tte r o f r ig h t a n d g e n e r a l p r in c ip le , n o t m e r e ly o f r o y a l

f a v o r .

I t s e e m s th a t, b y c u s to m a n d u s a g e in V e n ic e , in v e n tio n s w e r e o f f ic ia lly

e x a m i ne d t o s o m e e x t e nt , b e f or e a p a t e n t w a s g r a n t e d . E x p e r t s w e r e h e a r d [ 2 8 ] .

T h e p r o c e d u r e w a s p r o b a b ly b a s e d o n in te r v ie w s r a th e r th a n o n a r e c o r d a n d

specification in writing. This is understandable, since the bulk of the patent busine ss

was smal l. A substantial number of patents and numerous copyrights were granted in

Venice between 1500 and 1550. In some patent s, like tha t of Andrea Br ugone for

printin g in redand black, in 1568 the authority found it necessary to say: “While we have

n o t s e e n a n y p la n t o r m o d e l in th is m a tte r , s o lo n g a s th e a p p lic a n t a c h ie v e s w h a t h e

c la im s , b e it g r a n te d e tc . ” [2 9 ] . A p p a r e n tly a g u ild w h o s e p r e - e x is tin g m o n o p o l y

w a s a f f e c t e d h a d a r i g h t t o b e h e a r d . F ra n se s co Z a mb e rl a n, w ho o bt a in e d a p a te n t

f o r c e r ta in ty p e s o f m ir r o r s in 1 5 7 2 , h a d to p r o v e to th e g u ild h o w n e w th e y w e r e

[ 3 0 ] . T h is p r a c tic e , p r o b a b l y o f v e r y e a r l y o rig in an d s te mm in g f r om th e tim es wh e n

the guilds had been strong, remained in effect until the fall of the republic, as shown byin s ta n c e s o f g u ild o p p o s itio n in V e n ic e a t th e e n d o f th e e ig h te e n th c e n tu r y [ 3 1 ] .

When novelty seemed questionable, a patent was not necessarily denied,

a lth o u g h th is h a p p e n e d , f o r in s ta n c e , to G ir o la m o Ma g a g n a ti, w h o c la im e d “ a n e w





i n v e n t i o n , m a d e b y h i m s e l f , r e l a t i n g t o g l a s s a n d m i r r o r s , ” i n 1 5 5 4 [ 3 2 ] .

Sometimes a remark of caution was added; for instance, when Jacopo T.Ungaro in 1513

c l a i m e d t h e “ u s e f u l a n d i n g e n i o u s i n v e n t i o n … o f p r i n t i n g m u s i c a l n o t a t i o n , ” t h i s

w a s “ c o n c e d e d a s a p p lie d f o r , w ith o u tp r e ju d ic e to c o n c e s s io n s w h ic h m a y p e r h a p s

h a v e b e e n m a d e b e f o r e [ 3 3 ] . A p a te n t f o r “ m u s ic a l n o ta tio n ” h a d p r e v io u s ly b e e n

i s s u e d t o O t t a v i a n o d e i P e t r u c c i [ 3 4 ] .

28. Brown, p. 98.29. Brown, p. 98.

30.. Cecchetti, Vet. Ven., p. 25, 26.

3 1 . C e c c h e t t i , V e t . V e n ., p . 1 7 , 3 0 , 3 1 .

3 2 . C e c c h e t t i , V e t . V e n ., p . 2 6 .

3 3 . S t o l f i , A p p e n d i x , N o . 4 4 ( f u l l t e x t ) .

3 4 . S t o l f i , A p p e n d i x , N o . 4 0 ( f u l l t e x t ) .

716

M o r e f r e q u e n t l y , a p a t e n t o r c o p y r i g h t w a s g r a n t e d f o r a s h o r t e r p e r i o d t h a na p p l i e d f o r [ 3 5 ] ; a c c o r d i n g t o p r i n c i p l e s n o l o n g e r k n o w n i n d e t a i l .

U n d o u b t e d l y , p a t e n t a b i l i t y w a s n o t l o s t u p o n p u b l i c u s e , b y t h e i n v e n t o r , o f

t h e i n v e n t i o n . I n f a c t i t s e e m s f r o m t he w or d i n g o f th e pa t e n t s t h a t s o m e u s e , a n d

proof of utili ty, precede d the patent grant as a matte r of course.

T w o e a r l y i n s t a n c e s o f p a t e n t o r c o p y r i g h t e n f o r c e m e n t ar e k n ow n . I n 1 4 99 ,

A n t o n i o M o r e t t o , h o l d e r o f a c o p y r i g h t o f 1 4 9 8 [ 3 6 ] o b t a i n e d a d e c r e e o f t h e

C o u n c i l o f T e n , t h e s u p r e m e a u t h o r i t y o f t h e r e p u b l i c , “ e n j o i n i n g e v e r y b o d y t h a t

h is c o py r ig h t s h o u ld b e r es p e c te d ’ [ 3 7 ] I n 1 5 0 2 , A ld u s Ma n u tiu s , th e h o ld e r o f a

pate nt of 1495 [38] obtai ned a simil ar decre e [39], in support of his inter ests

i n V e n i c e a s w e l l a s i n t h e r e p u b l i c o f F l o r e n c e , a n d a t L y o n s , F r a n c e .

I n h e r e n t p r o p e r t y r i g h t s i n a n i n v e n t i o n , a s i d e f r o m t h e a d m i n i s t r a t i v e g r a n t

by the sta te, were not offi cia lly recogn ized, so far as the docume nts show. Even the

pate nt s of th e ea rl ie st ti me we re no t al wa ys tr ea te d as in heri tab le prop ert y, but

r a t h e r a s s t r i c t l y p e r s on a l r i g h t s. T h i s i s i l l u s t r a t e d b y t h e f a c t t h a t u p o n t h e

pr em at ur e death of John of Speyer, in 1470, a notatio n was added to his pri vil ege , in

t h e b o o k o f r e c o r d s : “ I n v a l i d , t h e m a s t e r a n d a u t h or d i e d ” [4 0 ] . H i s b r ot h e r a n d h e i r

W e n d e l i n c o n t i n u e d h i s b u s i n e s s , b u t h a d n o b e n e f i t o f t h e u n e x p i r e d p a r t o f t h e

pat ent ter m. Aga in, in 151 7, the pat ent of Al du s w as m a de a va i l a bl e t o t he

p ub l i c , up o n hi s dea th [41 ], al tho ugh his fir m con ti nue d. On the oth er han d, in

1 5 1 3 , a p a t e n t o f D e m o c r i t o T e r r a c i n a , r e l a t i n g t o A r a b i c p r i n t , w a s t r a n s f e r r e d t o

his nephews and heirs [42].

No express license contracts are known from this early ti me . Ho we ve r th er e is

e v i de n c e t h a t a t l e a st o r al c o nt r a c t s m u s t h a v e b e e n m a d e . A l d u s a l l o w e d

c e r t a i n

3 5 . F u l i n p . 9 0 .

3 6 . F u l i n , A p p e n d i x , N o . 8 6 .

3 7 . F u l i n , A p p e n d i x , N o . 9 2 .





3 8 . S t o l f i , A p p e n d i x , N o . 4 ( f u l l t e x t ) .

3 9 . S t o l f i , A p p e n d i x , N o . 3 , 4 1 , 4 2 ( f u l l t e x t ) ; F u l i n , A p p e n d i x , N o . 1 2 6 .

4 0 . B r o w n p . 1 0 ; F u l i n p . 8 9 .

4 1 . F u l i n , A p p e n d i x , N o . 2 1 3 ( f u l l t e x t ) .

4 2 . B r o w n p . 4 2 .

7 1 7

p r i n t e rs t o u s e hi s pa t e n t e d s t y l e of gr e e k a n d i t a l i c t yp e [4 3] , wh i l e

c o m p l a i n i n g b i t t e r l y o f i n f r i n g e m e n t b y o t h e r s [ 4 4 ] .

I n g e n e r a l i t a p p e a r s t h a t t h e e a r l y V e n e t i a n p r i n t e r s o p e r a t e d i n r a t h e r

m o de r n w a ys . T h e y o p en e d e s t ab l i sh m e n t s i n o t h e r c i t i e s [ 4 5 ] a n d t o o k o u t

c o p y ri g h t s o n a n i n t e r n a t i o n a l s c a l e [ 4 6 ] . F o r t h e f i r s t e i g h t y y e a r s , t h e y w e re

f r e e f r o m g u i l d i n t e r f e r e n c e a n d s t a t e r e g u l a t i o n , a n d o p e r a t e d i n p u r e l y

c a p i t a l i s t i c w a y s . T h e y e v e n d e ve l o p e d t ow a r d t he p o i n t wh e r e t h e c o n t i n u i t y o f

t e c h n o l o g i c a l d e v e l o p m e n t - t h e o p p o s i t e o f g u i l d s t a b i l i t y - w a s a p p r e c i a t e d , a s

s h o w n f o r i n s t a n c e b y t h e f a c t t h a t a t l e a s t o n e o f t h e s e p r i n t e r s , R o c c h o B o n i c e l l o ,

pate nted a p l u r a l i t y o f s u c c e s s i v e i m p r o v e m e n t s o n p r i n t i n g frames, 1516 and

1551 [47].

T h e e x a c t n a t u r e o f s o m e o f t h e e a r l y p a t e n t s i s d o u b t f u l , d u e t o t h e l a c k o f

c o m p l e t e d e t a i l s . A s t o J o h n o f S p e y e r, i t i s c on t e s t e d [ 4 8 ] w h e t he r h e w a s

r e c o g n i z e d a s f i r s t i m p o r t e r o f t h e w h o l e a r t o f t y p o g r a p h y [ 4 9 ] , o r a s i n v e n t o r

o f im p r o v e m e n ts [ 5 0 ] . T h e p a te n t to A ld u s , c o v e r in g g r e e k a n d ita lic ty p e s , m a y b e

c o n s i d e r e d a s a d e s i g n p a t e n t ; a t l e a s t i t i s a b o r d e r l i n e c a s e i f c l a s s i f i e d a s

a m e c h a n i c a l i n v e n t i o n . O t h e r p a t e n t s w e r e m o r e c l e a r l y m e c h a n i c a l . S o m e o f t h e s e w e r e m e n t i o n e d a b o v e . W e m a y a d d: a p a t e n t t o Ni c o l o V l a s t os , a p a r t n e r o f

A l d u s , i n 1 4 9 8 , f o r “ g r e e k l e t t e r t y p e s u n i t e d w i t h t h e i r a c c e n t s ” [ 5 1 ] ; t h a t i s ,

pr ob ab ly , wi th pro vi si on for se pa ra te insertion of the accents, reducing the number of

n e ce s sa r y t y p e s f r o m s e v e r a l h u n d r e d t o a f e w d o z e n s . F u r t h e r a s o m e w h a t s i m i l ar

patent to Daniel Bomberg for Hebrew ty pes wi th vow el si gns [52 ]. Ugo da Ca rpi

t o o k o u t a p a t e n t i n 1 5 1 6 f o r w o o d c u t t i n g i n c h i a r o s c u r o [ 5 3 ] , a n d A n t o n i o

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.

4 9 . “ T h e r e h a s b e e n i n t r o d u c e d … b y … J o h n … ”

5 0 . “ I t i s m a d e m o r e c e l e b r a t e d a n d f r e q u e n t b y … J o h n … ”

51. Brown p. 55.

52. Brown p. 98.53. Brown p.’98, 103.

718

G u a r d a n o o b t a i n e d o n e i n 1 5 3 8 f o r a “ n e w m e t h o d o f p r i n t i n g m u s i c ” [ 5 4 ] . I n





1 5 9 3 - 4 w e f in d a p a te n t to G a lile o G a lile i, c o v e r in g a p u m p a n d w a te r d is tr ib u tin g

s y s te m [ 5 5] . S t i l l o t h e r p a t e n t s a r e k n o w n t o h a v e i s s u e d t o g l a s s m ake rs i n 1 507

[56], 1719 [57], and 1739 [58]. The last of these, rel ati ng t o a ma te ria l to im pro ve t he

glass mixture, was revoked when a competitor of the patentee brought proof that

n o v e l t y w a s l a c k i n g [ 5 9 ] . S t i l l f u r t h e r d e t a i l s p r o b a b l y c o ul d be fo u nd , ei t he r in t he

original records in Venice, if they are still in existence after the second world war, or

in b o o k s o n th e v a r io u s a r ts th a t f lo u r is h e d in V e n ic e .A s m e n t i o n e d , V e n i c e g r a n t e d c o p y r i g h t s a s w e l l a s p a te n ts . A r ou n d 1 5 00 ,

c o py r ig h ts w e re g r an t ed i n di s c r i m i n a t e l y , f o r n e w a n d o l d b o o k s . G r a d u a l l y , i t w a s

r e a l i z e d t h a t i t w a s a n e c e s s a r y “ c o n d i t i o n t h a t s o m e t h i n g w a s i n n o v a t e d f o r t h e

u s e o f t h e s c h o l a r s ” [ 6 0 ] . I n 1 5 1 7 , a g e n er a l c op y r i g ht s t a t ut e w a s e n a c t e d [ 6 1 ] ; t h e

f i r st o f i t s k i n d . I t r e q u i r e d a n e w b o o k , j u s t a s t h e p a t e n t la w o f 1 4 74 h a d

requi red a new inventi on. Trade marks were never officially recognized by the

r e p u b l i c o f V e n i c e ; t h a t s u c h a m a r k m a y c o n s t i t u t e a n i n t e r e s t w o r t h y o f p r o t e c t i o n

w a s n o t g e n e r a l l y u n d e r s t o o d a s y e t , a n d w a s a p p r e c i a t e d o n l y b y o r i g i n a t o r s o f t r a d e m a r k s , l i k e A l d u s [ 6 2 ] . L i k e l a t e r i n E n g l a n d [ 6 3 ] , p a t e n t s

d e v e l o p e d p r i o r t o t r a d e m a r k s .

I t is r e m a r k a b le th a t a n e m b r y o n ic r e c o g n itio n o f in te lle c tu a l p r o p e r ty s h o u ld

a p p e a r i n t h o s e e a r l y t i m e s . A s t a t ut e . o f 1 5 4 5 [ 6 4 ] p o i n te d i n t h i s w a y . I t

s u p p o r te d th e a u th o r , a s a g a in s t th e p u b lis h e r ; a n d it p u t th e a u th o r ’ s h e ir o n a p a r

w i t h t h e a u t h or h i m s el f . I f V e n i ce ha d n o t s t a r t e d t o d e c l i n e , a b o u t t h i s t i m e , i t

c o u l d b e f a i r l y a s -

54. Brown p. 108.5 5 . F e d e r i c o , 8 J P O S 5 7 6 ( f u l l t e x t ) .

5 6 . B . C e c c h e t t i , V e t . V e n . p . 2 6 .



5 9 . B . C e c c h e t t i , V e t . V e n . p . 3 3 ..

6 0 . F u l i n , A p p e n d i x , N o . 2 1 1 .

6 1 . S t o l f i p . 2 6 ; B r o w n , A p p e n d i x 1 , N o . 1 ( f u l l t e x t ) .

6 2 . F . I . S c h e c h t e r , T h e H i s t . F o u n d a t i o n s o f t h e L a w R e l . t o T r a d e M a r k s , 1 9 2 5 , p . 6 3 - 7 7 .

63. Schechter p. 101-145.

64. Below, p. 750.

719

s u m e d t h a t a l a w f u l l y r e c o g n i z i n g i n t e l l e c t u a l p r o p e r t y i n i n v e n t i o n s a n d o t h e r

c r e a t i o n s w o u l d h a v e b e e n e n a c t e d , a n d t a k e n o v e r b y o t h e r c o u n t r i e s .

A c tu a lly , V e n ic e d e c line d , c o m m e rc ia lly a n d s p ir itua lly . T h e b e g i n n in g s o f

c o p y r i g h t w e r e s t i f l e d w h e n C h u r c h a n d S ta t e c e ns o r sh i p to o k o v e r [ 6 5 ]. I n 15 4 8 ,

t h e p r i n t e r s w e r e f o r c e d i n t o t h e s t r a i g h t - j a c k e t o f a s t a t e - c o n t r o l l e d g u i l d [ 6 6 ] , f o r m o r e c o n v e n i e n t c e n s o r s h i p , a s i d e f r o m a g e n e r a l p o l i c i n g o f t h e t r a d e , i n V e n i c e

[ 6 7 ] a s e ls e w h e r e [ 6 8 ] .

W h e n V e n i c e h a d b e e n s t r o n g , s t r e a m s o f E u r o p e a n s a n d A s i a t i c s h a d





c o n v e rg e d i n t h a t c o s m o po l i t a n c e n t e r . W i t h h e r d e c l i n e , a g e n e r a l m o v e m e n t i n

t h e o p po s i t e d i r e c t i o n b e c a m e m o r e p r o n o u n c e d . I t b r o u g h t n e w t ec h no l og y ,

t o g e t h e r w i t h t h e i n s t i t u t i o n o f i n d i v i d u a l p a t e n t m o n o p o l i e s , t o t h e o t h e r s t a t e s

o f I t a l y a n d E u r o p e . I n m o s t p l a c e s, t h e p a t e n t s y s t e m w a s a d o p t ed a l m o s t

e x a c t l y a s d e v e l o p e d i n V e n i c e . F l o r e n c e i s s a i d t o h a ve a d de d a s ys t em o f

y e a r l y t a x e s on p at e n t s [ 6 9 ]. A l l o f t h e b a s i c p a t e n t r u l e s d e v e l o p e d i n V e n i c e

w e r e p r e s e r v e d i n t h e s u b s e q u e n t s y s t e m s , d o w n t o a n d i n c l u d i n g o u r p r e s e n tA m e r i c a n s y s t e m .

3. Patents under the Mercantile System.

F o r s o m e t i m e , F r a n c e a b s o r b e d a m a j o r s h a r e o f t h e m i g r a t i o n o f a r t i z a n s

f r o m V e n i c e , a n d p r o f i t e d b y i t . T h e n i g h t o f S t . B a r t h o l om e w , i n 1 5 7 2 , a n d t h e

e x t r e m e r e l i g i o u s i n t o l e r a n c e t h a t p r e v a i l e d i n F r a n c e u n t i l t h e r e v o l u t i o n , f o r c e d

th e g r e a te r n u m b e r o f s k ille d a r tiz a n s a n d in v e n to r s to f le e to E n g la n d , H o lla n d a n d

G e r m a n y , r o b b i n g F r a n c e o f g r e a t e r p o t e n t i a l i t i e s t h a n a p a t e n t s y s t e m c o u l d

c r e a t e . T h e p a t e n t s y s t e m w a s t h e r e , a n d t h e r e wa s a di s t i n c t re a d i n e s s , o n t h e par t of the Cro wn, to encourage inventions; but inventors, as human beings, wer e

d e t e r r e d r a t h e r t h a n a t t r a c t e d .

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

I n v e n t i o n s w e r e o f f i c i a l l y e n c o u r a g e d i n a l m o s t t h e s a m e m a n n e r a s i n

V e n i c e . O f c o u r s e , i n V e n i c e , t h e m o na r c h w a s o n l y a p up p e t o f t he n ob i l i t y . I n

F r a n c e , t h e n o b i l i t y f o u g h t a l o s i n g b a t t l e w i t h t h e c r o w n , f r e q u e n t l y s i d i n g w i t h

t h e g u i ld s . I n E n g la n d , a s o m e wh a t s i m i l a r b a t t l e r e s u l t e d i n m a n i f o l d

c o m p r o m i s e s , w i t h t h e o v e r a l l r e s u l t t h a t g u i l d m o n o p o l i e s d i s a p p e a r e d s o o n e r

w h i l e n o b i l i t y a n d m o n a r c h y p r e v a i l e d l o n g e r , a n d a f r e e e c o n o m y w a s e s t a b l i s h e d

s oo ne r. B ot h i n E ng l a n d a n d i n F r a n c e , t h e c r o w n g r a d u a l l y a d o p t e d t h e s ys t em s

t h a t t h e n o bi l i t y h a d u s e d s u c ce s s fu l l y i n V e n ic e . T h e s u m t o t a l o f t h e s e s y s t e m s i sk n o w n a s M e r c a n t i l i s m . [ 7 0 ]

T h e m e r c a n t i l e p o l i c y a s t o f o r e i g n t r a d e w a s m a i n l y d i r e c t e d t o w a r d s a n

e x c e s s o f n a t i o n a l e x p o r t s o v e r n a t i o n a l i m p o r t s . S t a t e - r e g u l a t e d m a n u f a c t u r e s a n d

c o m m e r c e w e r e e n v is a g e d to th is e n d . I n te r io r ly , th e s y s te m c o n s is te d m a in ly in

g r af t i ng s t a te c o nt r ol u p on t h e e x i st i n g g u i l d o r g a n i z a t i o n . M a n y a d m i n i s t r a t i v e

t o o l s o f t h e m e r c a n t i l e s y s t e m w e r e i m p o r t e d f r o m I t a l y . T h e p ri v il e ge o f

m o n o p o ly w a s o n e o f th e m . P a te n ts a r e a n e m in e n tly Me r c a n tilis ti c m e a s u r e .

I n f o l l o w i n g t h e s e p o l i c i e s , t h e c r o w n w a s o f t e n i n c o n f l i c t w i t h t h e g u i l d s ,

i n m a jo r q u es t io n s o f t a xa t io n , r e l i g i o n , a n d f o r e i g n p o l i c y . S i m i l a r l y a c o n f l i c t

w a s e v e r p r e s e n t i n t h e r e l a t i v e l y r e m o t e fi e l d o f n e w i n ve n t i o ns . M e r c a nt i l i s m





f a v o re d s om e i n no v a t io n s [7 1 ] , b y pa t e n t s a n d o t h e r w i s e . T h e g u i l d s w e r e g e n e r a l l y

o p p o s e d. A s i n V e n i c e , i n v e n t o r s r e q u i r e d a s t a t e - g u a r a n t e e d l i c e n s e t o u s e t h e i r

i n v e n t i o n s , i n f r i n g i n g s o m e g u i l d m o n o p o l i e s .

I t a p p e a r s t h a t t h e g e n e r a l p a t t e r n f o r t h e e a r l y p r i v i l e g e s y s t e m w a s t h e s a m e

a t a l l p l a c e s : n e w t e c h n o l o g y w a s o f f e r e d t o t h e s t a t e ; t h e s t a t e f r e q u e n t l y w a s

w e l l d i s p o s e d t o w a r d s i t ; t h e g u i l d s g e n e r a l l y o p p o s e d i t ; w h e n a . p r i v i l e g e w a s

g r a nt e d i t w a s o f t en by co m pr o m i s e w i t h t h e g u i l d . I n V e n i c e , t h e g u i l d s h a ds t a r t e d

7 0 . E . F . H e c k s ch e r , M e r c a n ti l i s m , 1 9 3 5 , 2 v o l s .

71. Heckscher vol. 1 p. 141, 170.

721

to d e c lin e a t . a r e la tiv e ly e a r ly tim e , a n d th u s w e f in d o n ly s o m e tr a c e s o f s u c h

c o m p r o m i se p ro c e d u r e s, i n t h e s u r v i v i n g r e c o r ds . I n F r a n c e , a m o r e c o m p l e t e

pi ct ure was preserved.

T h e p r i v i l e g e p r o c e d u r e o f F r a n c e i n v o l v e d a p r o c e e d i n g b e f o r e t h e

P a r l e m e n t d e P a r i s . T h e l o c a l p a r l i a m e n t s o f F r a n c e , a n d m a i n l y t h a t o f P a r i s ,

r e p r e s e n t e d th e c le r g y a n d n o b ility [ 7 2 ] . T h e y h a d e x e r c is e d c o n s id e r a b le le g is la tiv e ,

a d m i n i s t r a t i v e a n d j u d i c i a l p o w e r , i n t h e t h i r t e e n t h . c e n t u r y . P r a c t i c a l l y

throughout the old regime, which ended in 1789, the laws, decrees, and other legal acts

o f t h e k i n g , i n c l u d i n g p a t e n t s , h a d t o b e r e g i s t e r e d b y t h e P a r l e m e n t d e P a r i s , i n

o r d e r t o a c q u i r e b i n d i n g fo r c e . S t a r t i n g i n t h e f i f t e e n t h c e n t u r y , t h e , e x p o n e n t s o f

r o y a l a b s o lu tis m b e g a n to r e d u c e th e p a r lia m e n ts to m e r e r u b b e r s ta m p s , s o m e tim e s

u s i n g m e a s u r e s s u c h a s b a n i s h m e n t o r i m p r i s o n m e n t o f t h e p a r l i a m e n t a s a w h o l e .

H o w e v e r , t h e t h e o r y a n d i n s t i t u t i o n o f p a r l i a m e n t a r y r e g i s t r a t i o n p r e v a i l e d u n t i l

t h e e n d .

I n 1 5 3 6 , F r a n c i s I o f F r a n c e o c c u p i e d P i e m o n t , o n e o f t h e h i g h l y c i v i l i z e d

s t a t e s o f n o r t h e r n I t a l y . I n t h e s a m e y e a r , E t i e n ne T u r q ue t t i f r o m P i e m o nt

o b t a i n e d a p r i v i l e g e f o r t h e p r o d u c t i o n o f s i l k f r o m t h e m u n i c i p a l g o v e r n m e n t o f

L y o n s i n F r a n c e , w i t h t h e c o n s e nt of t h e k i n g [ 7 3 ] . P r e v i o u s a t t e m p t s h a d b e e n

m a d e , f o r a l m o s t a h u n d r e d y e a r s , t o t r a n s p l a n t , t h i s a r t i n t o F r a n c e ; i n f a c t ,

g u i l d s o f s i l k m a k e r s h a d b e e n c r e a t e d i n o t h e r F r e n c h t o w n s , s t a r t i n g i n . 1 4 6 6 .

T he s e e a r li e r a t t e mp t s h a d f a i l e d . T u r q u e t t i ’ s p r i v i l e g e c a l l s h i m t h e “ i n v e n t o r ”

o f a n a r t . A s i n t h e c a s e o f J o h n o f S p e y e r , i t i s q u e s ti o na b le w he t he r h i s a c t ua l

c la im w e n t to th e in v e n tio n o f a n e w , im p r o v e d s y s te m o f o r g a n iz in g th is

c o m p l i c a t e d f i e l d , o r t o t h e i n t r o d u c t i o n o f a p r e e x i s t i n g s y s t e m f r o m a b r o a d .

L y o n s g a v e T u r q u e t t i l e s s t h a n a c o m pl e t e m o n op o l y. I t ga v e h i m t h e r i g ht ,

a p p a r e n t l y f o r h i s l i f e , t o c o l l e c t r o y a l t i e s f r o m a l l s i l k m a k e r s w h o w o u l d n e w l y

e s t a b l i s h t h e m s e l v e s i n L y on s . I t a l s o g a v e

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.

7 7 . S e e t h e c a s e c i t e d i n D a r c y v . A l l e i n , 1 6 0 2 , 1 1 C o k e R . 8 4 - b .

7 8 . R . M e l d a u a s c i t e d b y I s o r e p . 1 0 5 . N o t i t l e i s g i v e n b y I s o r e . P r o b a b l y d e t a i l s c a n b e f o u n d i nR . M e l d a u , H a u p t w u r z e l n d e s D . P a t . R . , i n V . D . I . A r b . G e m . T e c h n i k - G e s c h i c h t e , S c h r i f t e n -R e i h e , V o l . 2 6 , 1 9 3 7 . I w a s u n a b l e t o g e t t h i s b o o k .

723

G i a c o m o A c o n c i o , a f o r t i f i c a t i o n s e n g i n e e r f r o m T r e n t , b e t t e r k n o w n a s a

h u m a n i s t a n d f i g h t e r f o r t o l e r a n c e [ 7 9 ] .

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

7 9 . D . S . D a v i e s , 5 0 L . Q . R . p . 9 9 a n d L i t e r a t u r e c i t e d ; E r i c h H a s s i n g e r , S t u d i e n z u J a m e sA c o n t i u s , 1 9 3 4 , p . 1 - 2 0 .

80. Isorep. 106, 107.

81. Isore p. 114.8 2 . I s o r e p . , 1 0 4 .

8 3 . H u l m e , 1 6 L . Q . ‘ R . p . 5 2 .

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

r o y a l p a t e n t w a s a l t o g e t h e r d e n i e d b y t h e P a r l e m e n t [ 8 8 ] . P l ai n ly , w e h a ve he r e a

patent system with opposition pro cee din gs, of a med iev al typ e.

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 atall, 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.

9 0 . D a v i e s , 5 0 L . Q . R . p . 1 0 6 - 1 0 8 .

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 30years [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.

9 5 D e B o u f f l e r s , R e p o r t o f 1 7 9 0 , i n F r e n c h P a t e n t R e p o r t s , F i r s t S e r i e s . V o l . I p . 5 7 - 7 4 ( f u l l t e x t ) .

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 touse, or had failed to use it at all; subject to a right of the patentee to show good causes.

[108]

O u r m a i n s o u r c e f o r t h e s e d e t a i l s i s a r e c o r d o f , p a r l i a m e n t a r y r e g i s t r a t i o n s ,

k e p t b y t h e c o u n c i l l o r L e N a i n a n d h i s ’ s u c c e s s o r s [ 1 0 9 ] ; a l o n g w i t h t h e p a t e n t

d r a w i n g s a n d s p e c i f i c a t i o n s , a p p r o v e d b y t h e a c a d e m y b e t w e e n 1 6 6 6 a n d 1 7 3 5 ,

which were reconstructed by M. Gallon; on the basis of the models preserved by the

a c a d em y [ 1 1 0] . T h e s e r e c o r d s G a llo n a n d L e N a in c o n s titu te , r e s p e c tiv e ly , a P a te n t

G a z e t t e a n d a s e t o f C o m m i s s i o n e r ’ s D e c i s i o n s u n d e r t h e o l d r e g i m e o f F r a n c e .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

r e f u s e d . T h i s r e c og n i t i o n wa s i n c o r po r a t e d i n s t a t u t e s , r e f l e c t i n g a l e g a l c o n c e p t ,

f i r s t b y i m p l i c a t i o n , a n d l a t e r i n e x p r e s s a n d e v e n e m p h a t i c t e r m s .

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

1 1 1 . B e l o w , p . 7 5 2 .

1 1 2 . A . K l e i n c l a u s z , I - l i s t . d e L y o n , 1 9 3 9 , v o l . 1 , p . 5 0 4 ; P o u i l l e t p . 1 - 3 .

1 1 3 . K l e i n c l a u s z p . 5 0 6 .

1 1 4 . O s w a l d p . 1 2 1 ; a l s o s e e F o o t n o t e N o . 3 9 .

1 1 5 . H e c k s c h e r p . 1 4 2 - 1 5 1 ; K l e i n c l a u s z p . 4 7 1 , 5 0 3 .

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 lawsand 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 one1 2 2 . H e c k s c h e r , p . 1 7 0 - 1 7 6 ; S c h e c h t e r p . 4 0 - 4 7 ; P i o l a - C a s e l l i p . 7 .

730





master made and used a new design that proved particularly successful he was quite

able to become more prosperous than others; and he did not share it with the group. If

another copied the design, without, his. consent, this other was apt to be called before a

guild tribunal. It is possible and even probable that disputes came up occasionally,

involving the infringement of intangible interests based on new technology. Some such

instances are actually known [123]. Similar disputes came up in the early development

of trade mark rights [124]. However, since they came before the tribunals of the guild,they were not likely to be known in the law of the land, so far as the villes juréeswere

concerned..

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 intendto 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”. [129One 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.

1 2 7 . P o u i l l e t p . 5 , 6 .

1 2 8 . P o u i l l e t p . 6 .

1 2 9 . E n c y c l o p e d i a B r i t a n n i c a , “ D i d e r o t . ”

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 Buchhand l u n g , 1 6 9 0 ; J . F L v o n





B e r g e r , E l e c t a D i s c e p t a t i o n u r n , 1 7 0 6 , e t c .

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 dogmaticsystem, 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 actsupporting 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 someopposition 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 Olin Picard [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 remarkablechange 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 wecould 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, alongwith 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 awork; (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 theMillar 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 themain 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, 1882 85; 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 extraordinarylabors. 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 thecommon 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 theestablishment 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 arestill 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 theera 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. Theyonly 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 acourt 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 whythat 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 moreessential 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, bymodern 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, byAmerican 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 whereLyons 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, Ex position of Part of the PatentLaws 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 grantingCongress 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. Stillanother [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 thesecond 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 in1790. 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 to186. 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 reasonthat 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 aninstitution 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.

6. Documents

VENICE

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 beenriched by numerous and excellent books. And since such invention, peculiar and proper to our timeand entirely unknown to our elders, deserves every aid and favor, master John too should receivematerial 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 fiveyears next following there should be nobody whosoever who would, could, might or dare exercisesaid 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 heshould be condemned to a fine, and loss of his instruments, and books printed by him. And under thesame penalty nobody must… bring such books here for sale, when printed in other countries.

1474: Patent Statute [192]

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 ac tual wording, unfortunately, is unknown.193. Stolfi, App. No. 13; Brown App. 1 No. 7.

750

FRANCE





1536: Privilege of Etienne Turquetti [194]

Minutes of the Consular Government of Lyons. August 25, 1536. Mr. M. de Vauzelles, royaladvocate, 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 fromGenoa and other foreign countries; said workers to have franchises and tax exemptions like those atTours…

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 tohim by the council of the king, to establish… enterprises… for which said monarch gives safe conductand tax exemption. The letter, drawn up by the judge Vauzelles… was found in order. Again, saidTurquetti showed that a year has gone by since he started to prosecute this affair and he hasexpended… great costs… And since there may be others who, after said art and enterprises areestablished… will want to establish additional enterprises of said art… and have not carried anyexpense… 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 loanfrom 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 toestablish such enterprises… except when first agreeing with said Turquet and his partners to pay partof 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 andexpense.

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 copyhis 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 tenyears shall make… or hold for sale any… glassware according to the manner of Venice, except thosemade 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 certifywhether they are new and useful, and the inventors of those which are approved shall leave a modelthereof… Article 34: Non-members of the Academy are not admitted to the meetings, except whenintroduced 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) andregistered in Parliament (1717): All master merchants, working masters, journeymen and othersemployed in the manufacture of fabrics of silk, regardless of sex and age, are expressly prohibited andenjoined from taking, stealing, selling, lending, transferring and using directly or indirectly anydesigns 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.

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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 andcopying, or causing others to lift and copy, directly or indirectly, in any manner, any design on fabriceither 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 beinheritable 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 necessaryskill. Failure to use a privilege is objectionable, since it restricts liberty, while giving the public noneof the goods that should be expected. Finally, the lack of publication of privileges granted oftenenables 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 shallso remain, except for extension of said privileges, if such may be granted to the holder; however, wedo 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 theterm 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.

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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 collateralheirs, 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, notwithstandingany clauses whatsoever that may be found either in any granting instruments or in any subsequentinstruments 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 theexercise of such privileges was suspended for legitimate reasons or difficulties, to be justified by thegrantee.

7) In order to make said privileges known to whom it may concern we wish that after theregistration of said privileges in our Courts, there shall be sent a true copy thereof, by our AttorneyGeneral, 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 asone 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 toanother.

It seems harsh; but either that is clone, or no one can ever plead the cause of the first occupantand of legitimate possession, founded on risks, labor and advances. However, so that the derogationof 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… retardthe progress of the arts, by multiple difficulties put in the way of an inventor; those guilds that disputehis right to use a discovery, never made by themselves…

200. Diderot, Oeuvres Compl., ed. 1877, vol. 18 p. 1-30.

201. Renouard p. 110.

7541779: 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 andcommunities of Tours and of Lyons concerning attacks made against their property and against thegeneral interest of the manufacturers, by the copying and plagiarizing of designs, considers that thesuperiority which the silk manufactures of this kingdom have attained is principally due to theinvention, 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; thatthis security, in accordance with the rights of property, has so far sustained this branch of manufactureand 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 regulationsmade 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 inits 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 havealone, 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 churchfurniture and adornment, and six years in the case of those… for… other uses, always starting fromthe day on which the formalities hereinafter prescribed have been fulfilled.

2. His Majesty prohibits all workers from selling, giving away, or loaning to others… anydesigns which have been entrusted to them for manufacturing purposes, by penalty…

3. Similarly His Majesty prohibits all designers and others… from lifting and copying directlyor 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.

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5. Any manufacturer who has invented or has had others make a design, and who desires toconserve for himself the execution thereof, shall… present a sketch of the same… to the bureau of hiscommunity, whereof a descriptive statement shall be made, without cost, in a register… whichstatement shall contain the name …, etc. of the master and manufacturer who, as author and inventor of such design or fabric wants to establish his property; the date … etc.

6. (If not so registered, not protected)

7. A Manufacturer who has fulfilled the formal requirements of article 5 shall be deemed thesole 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, andthose who have it executed; to ask that the penalties of articles 2, 3 and 4, above, be pronouncedagainst them, and that, the fabrics be seized, both in the hands of the manufacturer who had themexecuted, and in the hands of any dealer who has them for sale; provided that the dealer may takerecourse, for the value of the goods, damages and interests, if any, against the manufacturer who soldthe 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 beenexecuted previously in fabrics; therefore, any manufacturer who executes in fabric a paper designcopied 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 itwould 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 thistruth. may have contributed, until now, to discourage French industry, causing various distinguishedexperts 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

ser ies, vol. I p. 28; 34.

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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 concerningthis 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 andfor the time hereinafter determined.

2. Any means for adding to any manufacture a new kind of perfection shall be regarded as aninvention.

3. The first person to import a foreign discovery into France shall enjoy the same advantagesas if lie were the inventor thereof.

4. Any person who wants to conserve or to secure to himself an industrial property of the kindreferred to in the preceding articles, shall (first) file… a written declaration stating whether the subjectinvolved 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 Regulationswhich 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 thecountry…

16. (Patents declared void if the description is deceptive or incomplete; if the subject has beendescribed in a prior printed publication; on failure to work the invention within two years exceptwhere good reason is shown; and if a subsequent foreign patent is taken out by the.patentee.)

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AMERICA1672: Mercantilist Rule in Connecticut [205]

There shall be no monopolies granted or allowed amongst us but of such new inventions asshall 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 saidcopy or copies, nor shall he nor any other reprint or make sale of any of the same, without the saidOwner’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 justicethat 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 theconsent 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 securityis one of the natural rights of all men, there being no property more peculiarly a man’s own than thatwhich 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.

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ward; and as the security of literary property must greatly tend to encourage genius, to promote usefuldiscoveries, 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, accordingto 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 usefulmachines and implements the benefits therefor, for a limited time. (Submitted by Madison accordingto 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 byPinkney according to his Observations).

1813: Jefferson on Intellectual Property.Letter to Isaac McPherson, August 13, 1813 … It has been pretended by some, and in- Englandespecially, 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 anykind 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 noindividual has, of natural right, a separate property in an acre of land, for instance. By an universallaw, 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,

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could, of natural right, be claimed in exclusive and stable property. If nature has made one thing lesssusceptible 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 isdivulged, 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 thewhole of it. He who receives an idea from me receives instruction himself without lessening mine, ashe who lights his taper at mine receives light without darkening mine. That ideas should freely spreadfrom 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 madethem 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 exclusiveappropriation. Inventions then cannot in nature be a subject of property. .Society may give anexclusive right to the profits arising from them, as an encouragement to men to pursue ideas whichmay produce utility, but this may or may not be done according to the will and convenience of thesociety, without claim or complaint from anybody. It is a fact, as .far as I am informed, that Englandwas, until we copied her, the only country on earth which ever, by a general law, gave a legal right tothe exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by aspecial 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.

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