Statute of Monopolies

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The Statute of Monopolies [1]
Coat of Arms of England (1603-1649).svg
Long title An Act concerning Monopolies and Dispensations with penall Lawes and the Forfeyture thereof. [2]
Citation 21 Jac 1 c 3
Introduced by Sir Edward Coke
Territorial extentEngland and Wales
Dates
Royal assent 29 May 1624
Commencement 29 May 1624
Other legislation
Repealed by Statute Law Revision Act 1863
Patents, Designs and Trade Marks Act 1883
Statute Law Revision Act 1948
Administration of Justice Act 1965
Statute Law (Repeals) Act 1969
Status: Repealed
Revised text of statute as amended

The Statute of Monopolies was an Act of the Parliament of England notable as the first statutory expression of English patent law. Patents evolved from letters patent, issued by the monarch to grant monopolies over particular industries to skilled individuals with new techniques. Originally intended to strengthen England's economy by making it self-sufficient and promoting new industries, the system gradually became seen as a way to raise money (through charging patent-holders) without having to incur the public unpopularity of a tax. Elizabeth I particularly used the system extensively, issuing patents for common commodities such as starch and salt. Unrest eventually persuaded her to turn the administration of patents over to the common law courts, but her successor, James I, used it even more. Despite a committee established to investigate grievances and excesses, Parliament made several efforts to further curtail the monarch's power. The result was the Statute of Monopolies, passed on 29 May 1624.

Parliament of England historic legislature of the Kingdom of England

The Parliament of England was the legislature of the Kingdom of England, existing from the early 13th century until 1707, when it united with the Parliament of Scotland to become the Parliament of Great Britain after the political union of England and Scotland created the Kingdom of Great Britain.

Statutory law or statute law is written law passed by a body of legislature. This is as opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, state legislatures or local municipalities.

Patent Intellectual property conferring a monopoly on a new invention

A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, selling and importing an invention for a limited period of years, in exchange for publishing an enabling public disclosure of the invention. In most countries patent rights fall under civil law and the patent holder needs to sue someone infringing the patent in order to enforce his or her rights. In some industries patents are an essential form of competitive advantage; in others they are irrelevant.

Contents

The statute repealed some past and future patents and monopolies but preserved exceptions: one of these was for patents for novel inventions. Seen as a key moment in the evolution of patent law, the statute has also been described as "one of the landmarks in the transition of [England's] economy from the feudal to the capitalist". [3] Even with the statute in force, it took over a century for a comprehensive legal doctrine around patents to come into existence, and James I's successor Charles I regularly abused the patents system by ensuring that all cases relating to his actions were heard in conciliar courts, which he controlled. The English Civil War and the resulting English Restoration finally curtailed this system. The statute is still the basis for Australian law, and until the United Kingdom began following the European Patent Convention in 1977, was also a strong pillar of the United Kingdom's intellectual property law.

Charles I of England King of England and Ireland

Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649.

English Civil War Civil war in England (1642–1651)

The English Civil War (1642–1651) was a series of civil wars and political machinations between Parliamentarians ("Roundheads") and Royalists ("Cavaliers") principally over the manner of England's governance. The first (1642–1646) and second (1648–1649) wars pitted the supporters of King Charles I against the supporters of the Long Parliament, while the third (1649–1651) saw fighting between supporters of King Charles II and supporters of the Rump Parliament. The war ended with Parliamentarian victory at the Battle of Worcester on 3 September 1651.

European Patent Convention International patent treaty

The European Patent Convention (EPC), also known as the Convention on the Grant of European Patents of 5 October 1973, is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted. The term European patent is used to refer to patents granted under the European Patent Convention. However, a European patent is not a unitary right, but a group of essentially independent nationally-enforceable, nationally-revocable patents, subject to central revocation or narrowing as a group pursuant to two types of unified, post-grant procedures: a time-limited opposition procedure, which can be initiated by any person except the patent proprietor, and limitation and revocation procedures, which can be initiated by the patent proprietor only.

Background

Historically, English patent law was based on custom and the common law, not on statute. It began as the Crown granted patents as a form of economic protection to ensure high industrial production. As gifts from the Crown, there was no judicial review, oversight or consideration, and no actual law developed around patents. [4] This practice came from the guilds, groups who were controlled by the Crown and held monopolies over particular industries. By the 14th century the economy of England was lagging behind that of other European nations, with the guilds too small to control industrial production successfully. To remedy this, Edward II began encouraging foreign workmen and inventors to settle in England, offering "letters of protection" that protected them from guild policy on the condition that they train English apprentices and pass on their knowledge. The first recorded letter of protection was given in 1331. The letters did not grant a full monopoly; rather they acted as an extended passport, allowing foreign workers to travel to England and practice their trade. [5] An exceptional example (considered the first full patent in England) was issued to John of Utynam on 3 April 1449, granting him a monopoly. [6] Overseas, the practice of granting full industrial patents and monopolies became common in Italian states by the 1420s. [7]

Common law Law developed by judges

Common law is the body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of "common law" is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their sub-divisions. Legally ill-defined, the term has different meanings depending on context. It is used to designate the monarch in either a personal capacity, as Head of the Commonwealth, or as the king or queen of his or her realms. It can also refer to the rule of law; however, in common parlance 'The Crown' refers to the functions of government and the civil service.

Edward II of England King of England

Edward II, also called Edward of Carnarvon, was King of England from 1307 until he was deposed in January 1327. The fourth son of Edward I, Edward became the heir apparent to the throne following the death of his elder brother Alphonso. Beginning in 1300, Edward accompanied his father on campaigns to pacify Scotland, and in 1306 was knighted in a grand ceremony at Westminster Abbey. Following his father's death, Edward succeeded to the throne in 1307. He married Isabella, the daughter of the powerful King Philip IV of France, in 1308, as part of a long-running effort to resolve tensions between the English and French crowns.

Over the next century, the granting of full industrial patents became a more common practice in England; the next record is a letter from 1537 to Thomas Cromwell, Henry VIII's private secretary, from Antonio Guidotti, a Venetian silk-merchant. Guidotti had persuaded a group of Venetian silk-makers to practice in England, and wanted the king to grant him letters patent protecting their monopoly to grow silk for 15 or 20 years. This was granted, and Henry's son Edward VI followed up with a grant of letters patent to Henry Smyth, who hoped to introduce foreign glassworking techniques into England. This process continued after Elizabeth I came to the throne, with formal procedures set out in 1561 to issue letters patent to any new industry, allowing monopolies. [8] The granting of these patents was highly popular with the monarch, both before and after the Statute of Monopolies, because of the potential for raising revenue. A patentee was expected to pay heavily for the patent, and unlike a tax raise (another method of raising Crown money) any public unrest as a result of the patent was normally directed at the patentee, not the monarch. [9]

Henry VIII of England King of England and Ireland

Henry VIII was King of England from 1509 until his death in 1547. He was the second Tudor monarch, succeeding his father Henry VII. Henry is best known for his six marriages, in particular his efforts to have his first marriage annulled. His disagreement with the Pope on the question of such an annulment led Henry to initiate the English Reformation, separating the Church of England from papal authority. He appointed himself the Supreme Head of the Church of England and dissolved convents and monasteries, for which he was excommunicated. Henry is also known as "the father of the Royal Navy"; he invested heavily in the Navy, increasing its size greatly from a few to more than 50 ships.

Letters patent type of legal instrument in the form of a published written order

Letters patent are a type of legal instrument in the form of a published written order issued by a monarch, president, or other head of state, generally granting an office, right, monopoly, title, or status to a person or corporation. Letters patent can be used for the creation of corporations or government offices, or for the granting of city status or a coat of arms. Letters patent are issued for the appointment of representatives of the Crown, such as governors and governors-general of Commonwealth realms, as well as appointing a Royal Commission. In the United Kingdom they are also issued for the creation of peers of the realm. A particular form of letters patent has evolved into the modern patent granting exclusive rights in an invention. In this case it is essential that the written grant should be in the form of a public document so other inventors can consult it to avoid infringement and also to understand how to "practice" the invention, i.e., put it into practical use. In the Holy Roman Empire, Austrian Empire and Austria-Hungary, imperial patent was also the highest form of generally binding legal regulations, e. g. Patent of Toleration, Serfdom Patent etc.

Edward VI of England King of England and Ireland

Edward VI was the King of England and Ireland from 28 January 1547 until his death. He was crowned on 20 February at the age of nine. Edward was the son of Henry VIII and Jane Seymour, and England's first monarch to be raised as a Protestant. During his reign, the realm was governed by a regency council because he never reached maturity. The council was first led by his uncle Edward Seymour, 1st Duke of Somerset (1547–1549), and then by John Dudley, 1st Earl of Warwick (1550–1553), who from 1551 was Duke of Northumberland.

Over time, this became more and more problematic; instead of temporary monopolies on specific, imported industries, long-term monopolies came about over more common commodities, including salt and starch. These "odious monopolies" led to a showdown between the Crown and Parliament, in which it was agreed in 1601 to turn the power to administer patents over to the common law courts; [10] at the same time, Elizabeth revoked a number of the more restrictive and damaging monopolies. [11] Even given a string of judicial decisions criticising and overruling such monopolies, James I, Elizabeth I's successor, continued using patents to create monopolies. Despite the Committee of Grievances, a body chaired by Sir Edward Coke that abolished a large number of monopolies, a wave of protest occurred at the expansion of the system. [11] On 27 March 1621, James suggested the House of Commons draw up a list of the three most objectionable patents, and he would "give Life to it, without alteration", but by this time a statute was already being prepared by Coke. [12] After passing on 12 May 1621 it was thrown out by the House of Lords, but a Statute of Monopolies was finally passed by Parliament on 29 May 1624. [13]

Edward Coke English lawyer and judge

Sir Edward Coke was an English barrister, judge, and politician who is considered to be the greatest jurist of the Elizabethan and Jacobean eras.

House of Lords Upper house in the Parliament of the United Kingdom

The House of Lords, also known as the House of Peers and domestically usually referred to simply as the Lords, is the upper house of the Parliament of the United Kingdom. Membership is granted by appointment or else by heredity or official function. Like the House of Commons, it meets in the Palace of Westminster. Officially, the full name of the house is the Right Honourable the Lords Spiritual and Temporal of the United Kingdom of Great Britain and Northern Ireland in Parliament assembled.

Act

Sections 1–5

Section 1 said that:

all Monopolies, and all Commissions, Grants, Licences, Charters and Letters Patents heretofore made or granted, or hereafter to be made or granted, to any Person or Persons, Bodies Politick or Corporate whatsoever, of or for the sole Buying, Selling, Making, Working or Using of any Thing within this Realm, or the Dominion of Wales ... or of any other Monopolies, or of Power, Liberty or Faculty, to dispense with any others, or to give Licence or Toleration to do, use or exercise any Thing against the Tenor or Purport of any Law or Statute ... and all Proclamations, Inhibitions, Restraints, Warrants of Assistants, and all other Matters and Things whatsoever, any way tending to the Instituting, Erecting, Strengthening, Furthering or Countenancing of the same or any of them ... are altogether contrary to the Laws of this Realm, and so are and shall be utterly void and of none Effect, and in no wise to be put in Use or Execution. [14]

Crucially, this rendered all past, present and future patents and monopolies null and void. Patents were normally divided into three categories; patents for a particular invention, patents exempting a patent-holder from legislation, and patents for a particular trade or industry. Section 1, however, for the first time discussed a new category of patents; those "of Power, Liberty or Faculty". These patents were normally used in relation to penal laws, to "farm out" the business of administering to criminals and dispensing justice to private companies and individuals. The statute, in a break from previous law, emphasised that this power lay only within Parliament. [15] Section 2 provided that all future patents granted should be determined by the common law, and not otherwise, while Section 3 emphasised that companies and individuals now or in the future in possession of patents should not be allowed to exercise them. Sections 4 and 5 provided that if anyone was interfered with 40 days after the Statute of Monopolies was passed due to a patent or monopoly, any goods seized or persons imprisoned would be returned to their owners and released respectively. [14]

Sections 6–9

The Court of King's Bench, which the Statute of Monopolies explicitly exempted from its limitations on penal administration Court of King's Bench.JPG
The Court of King's Bench, which the Statute of Monopolies explicitly exempted from its limitations on penal administration

The most important part of the statute is Section 6, which lays out the exceptions to the rules preventing any kind of monopoly or patent. It stated that the previous provisions:

shall not extend to any letters patents (b) and grants of privilege for the term of fourteen years or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm (c) to the true and first inventor (d) and inventors of such manufactures, which others at the time of making such letters patents and grants shall not use (e), so as also they be not contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient (f): the same fourteen years to be acccounted from the date of the first letters patents or grant of such privilege hereafter to be made, but that the same shall be of such force as they should be if this act had never been made, and of none other (g). [16]

Essentially, this established a wide area in which patents could be granted, on the condition that monopolies lasted no longer than 14 years. These patents would apply to any new "manner" of "manufacture", with "manufacture" referring both to the creation of an object, and the design for that object. [17] Section 7 provided that the Act did not prejudice or overrule any previous statutory measures, while Section 8 provided that the restoration to Parliament of the power to administer penal law did not in any way infringe upon the right of the king, Court of King's Bench, Court of Common Pleas or other criminal courts to order someone's imprisonment. Section 9 provided that the rejection of letters patent and licenses did not extend to corporations over towns, such as the City of London Corporation. [18]

Significance

Charles I, who continued abusing the patents system even after the Statute of Monopolies King Charles I after original by van Dyck.jpg
Charles I, who continued abusing the patents system even after the Statute of Monopolies

The statute is worded "strongly and broadly", and other than the exceptions mainly repeated the existing common law. [14] The statute has long been considered a key moment in patent law; Chris Dent, writing in the Melbourne University Law Review, identifies it as "a significant marker in the history of patents" with continuing importance, although it is neither the start nor end of patent law. [19] Despite the statute, the courts did not develop a comprehensive and coherent legal doctrine for patent law for more than a century after the statute came into force. [20] Not only is it highly important within patent law, it also played a large role in economics; G. A. Bloxam, writing in the Journal of Industrial Economics, identifies the passage of the Statute of Monopolies as "one of the landmarks in the transition of [England's] economy from the feudal to the capitalist". [3]

As well as being significant in relation to patent law, Whig historians have also identified it as the first infringement upon the monarch's Royal Prerogative, and one of the first occasions in which the self-confident House of Commons overruled the king, eventually leading to the English Civil War. [21] Chris R. Kyle, writing in the Journal of Legal History, notes that this is not the case; not only did the Statute of Monopolies only restate the previous common law, leading to no infringement upon the Royal Prerogative, James I was in the later stages of the bill supportive of its principles. [22] James I was not opposed to the motion; during the 1621 session of Parliament, he voided several monopolies (included those for silver thread and inns), and both James and the Privy Council were active during the passage of the bill to ensure it was supported. [23]

The statute required extensive judicial action to make it work, particularly on the interpretation of Section 6. Sir Edward Coke, in his Institutes of the Lawes of England , wrote that

[N]ew manufacture must have seven properties. First, it must be for twenty-one years or under. Secondly, it must be granted to the first and true inventor. Thirdly, it must be of such manufactures, which any other at the making of such letters patent did not use ... Fourthly, the privilege must not be contrary to law ... Fifthly, nor mischievous to the state, by raising the prices of commodities at home. In every such new manufacture that deserves a privilege, there must be urgens necessitas et evidens utilitas. Sixthly, nor to the hurt of trade ... Seventhly, nor generally inconvenient. [24]

The subject was also discussed in Bircot's Case, where it was decided that an inventive improvement to an existing industry or invention was not a new "material", and could not be patented; such an improvement was described as "to put but a new button to an old coat". [25] Hasting's Case confirmed that a patent would not be issued, even for a new "material", that was extremely close to an old one, something originally laid down in Matthey's Case. [26] The statute did not stop the monarch issuing such patents in return for money; after James I's death, Charles I continued issuing them and avoided having to obey the law by having any cases heard in the conciliar courts, such as the Star Chamber. In response to this abuse and others, the Star Chamber was abolished by the Habeas Corpus Act 1640. [27] After the English Restoration, these activities largely ceased because of the dominant power of Parliament and the Bill of Rights 1689, which completely abolished the king's ability to disobey or alter statute. [28]

The Statute of Monopolies dominated patent law for centuries; it was received into the laws of many common law jurisdictions and still forms the basis for the modern patent laws of those countries: for example, the patent law of Australia is dominated by the Patents Act 1990, which states that one test for if something is patentable is if it relates to "a manner of manufacture within the meaning of section 6 of the Statute of Monopolies". [29]

In England and Wales, some sections of the statute are still technically in force,[ citation needed ] although the Statute Law Revision Act 1863, Patents, Designs and Trade Marks Act 1883, Statute Law Revision Act 1948, Administration of Justice Act 1965 and Statute Law (Repeals) Act 1969 repealed most of the legislation. In practice however, with the Patents Act 1977 (which brought the United Kingdom into line with the European Patent Convention), the statute has been implicitly repealed within England and Wales. [30]

See also

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References

  1. The citation of this Act by this short title was authorised by section 5 of, and Schedule 2 to, the Statute Law Revision Act 1948. Due to the repeal of those provisions, it is now authorised by section 19(2) of the Interpretation Act 1978.
  2. These words are printed against this Act in the second column of Schedule 2 to the Statute Law Revision Act 1948, which is headed "Title".
  3. 1 2 Bloxam (1957) p.157
  4. Pila (2001) p.210
  5. Klitzke (1959) p.624
  6. Klitzke (1959) p.627
  7. Pila (2001) p.211
  8. Pila (2001) p.212
  9. Ramsey (1936) p.7
  10. Pila (2001) p.213
  11. 1 2 Ramsey (1936) p.8
  12. Kyle (1998) p.206
  13. Klitzke (1959) p.649
  14. 1 2 3 Nachbar (2005) p.1351
  15. Dent (2009) p.441
  16. Statute of Monopolies s.6
  17. Pila (2001) p.214
  18. Nachbar (2005) p.1352
  19. Dent (2009) p.416
  20. Mossoff (2001) p.1276
  21. Kyle (1998) p.203
  22. Kyle (1998) p.216
  23. Kyle (1998) p.217
  24. Pila (2001) p.215
  25. Pila (2001) p.216
  26. Pila (2001) p.217
  27. Nachbar (2005) p.1353
  28. Nachbar (2005) p.1354
  29. Dent (2009) p.415
  30. Dent (2009) p.420

Bibliography