Origins of Patent Law

Written by Brandon Furdock

“[T]he patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time.” [1] The foundations of such a system can be found in various early civilizations. Forms of exclusive rights were provided to skilled craftsmen in ancient Chinese society, for example. [2] In ancient China, rulers identified particularly skilled craftsmen (e.g., silk weavers) and compelled the craftsmen to make products only for the ruler. In return, the craftsman would be granted the prestigious title of “majesty’s supplier and vassal.” [3]

A rule that more closely resembles modern patent law may have existed as early as 500 B.C. [4] Although the written records from 500 B.C. are lost, the Greek scholar Athenaeus of Naucratis wrote the “Deipnosophistae,” in which he describes a rudimentary form of patent law in the third century A.D. Deipnosophistae means “the Dinner Sophists,” and presents stories from a series of banquet dialogues that provide detailed accounts of Greek history. [5] Specifically, the Deipnosophistae is presented as a dialogue from Athenaeus to a friend carried out over a series of banquets held at the estates of wealthy patrons of the arts. [6] The relevant section of the Deipnosophistae reads: “When one of the chefs invented his own delicious dish, no other person should be allowed to make use of this invention before the end of a year, only the inventor himself; during which time he would have the business profit from it, so that others would compete and surpass each other in such inventions.” [7]

Although the Deipnosophistae has only a short description of a patent system, we can draw some interesting comparisons to modern-day patent systems. First, it is known that thousands of years before modern patent jurisprudence, the Greeks realized a limited right to exclude to provide strong incentives for inventors. The Greeks also recognized that “[p]atent law reflects ‘a careful balance between the need to promote innovation through patent protection, and the importance of facilitating the ‘imitation and refinement through imitation.’” [8] This is evidenced by the one-year time limit on the right to exclude. Second, only certain recipes (i.e., delicious dishes) were worthy of being granted a monopoly. The requirement that dishes be delicious intimates the U.S.’s non-obvious requirement, where the dish must represent a significant contribution to the arts and not merely a minor improvement on what is already known. [9]

I. THE VENETIAN PATENT STATUTE

Although the beginnings of a patent system were conceived much earlier, it was not until the 15th century that the first codified patent system was developed. [10] This system was laid out in the Venetian patent statute enacted by the Venetian senate in 1474. [11] Scholars know much more about this patent system than about earlier systems, as written records of the act and examples of inventions granted patents still exist. [12] Similar to the modern administrative systems of the U.S., the Venetians had a centralized authority that provided the examination of patents. [13] Furthermore, the Venetian Patent Act included a “written description requirement” in the form of a “supplica.” The supplica would include details about the inventor, a description of the invention, and an assertion that the invention was new, ingenious, and useful. [14]

Before the Venetian Patent statute, commerce in Venice was controlled by guilds which were groups of merchants that banded together to fix prices and ensure that profits for a specific industry did not leave the guild. [15] The patent statute protected inventors from the power of the guilds. It provided an inventor the exclusive right to their invention for ten years from the grant of the patent. [16]

The Venetian patent statute of 1474 states, “every person who shall build any new and ingenious device in this City, not previously made in our Commonwealth, shall give notice of it to the office of our General Welfare Board when it has been reduced to perfection so that it can be used and operated.” [17] The Venetian patent statute therefore sets forth many of the modern foundations of patentability.

The phrase “new and ingenious” bears a striking similarity to the modern U.S. requirements of “novelty and nonobviousness” for patentability under the Patent Act. Section 102 sets forth the novelty requirement and states that no patents will be granted for inventions that have been “patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.” Section 103 sets forth the nonobvious requirement by stating that “differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious.” [18] Unlike the U.S. patent system, one interesting aspect of the Venetian patent system was that patents in 15th-century Venice could be granted to a third party that brought the patent to the country even if the invention had already been known elsewhere. [19] Modern U.S. practice does not (notwithstanding potential § 102 exceptions) allow for patenting of such an “imported” invention, notwithstanding potential Section 102 exceptions.

While the Venetian statute does not provide a definition of what is meant by “new and ingenious,” devices that were patented in Venice during the 15th century serve as examples. At least 500 patents were approved between 1474 and 1600. [20] Of the initial patents, many were directed to mills: devices that grind objects into smaller pieces–an important driver of Venetian economy. [21] One example patent is a hydraulic mill for spinning and throwing silk. [22] This patent was opposed by the Venetian silk spinners’ guild in one of the earliest recorded opposition proceedings. (The silk spinners’ guild also opposed a silk bleaching patent invented by Giacomo di Bianchi and Innocente Soardo in 1597.) [23] Other inventions patented at the time include a system “to excavate mud and all kinds of soil,” “a manner and way to make bricks,” and “devices to raise water.” The majority of these patents were mechanical and similar in subject matter to the patents that are commonly prosecuted in modern U.S. practice.

There are some examples, however, that would clearly not pass modern scrutiny. For example, a patent for “having some hope of having discovered a perpetual motion,” which was granted for a fifty-year term. [24] Perpetual motion machines have a colorful history at the U.S. Patent Office, of being denied patent protection based on a failure to meet the utility requirement of 35 U.S.C. § 101.

II. SPREAD THROUGH EUROPE 

By the 16th century, patents began to proliferate across Europe. [25] In 1551, the first French patent was granted. Interestingly, the patent was granted to Theseus Muito from Bologn–a Venetian that had traveled to France. [26] The patent was directed to a means of making glasswork, a Venetian specialty. The rights granted were “permission and privilege that for the period of ten years he alone shall make or have made, in this kingdom, said glass, mirrors, tubes (canons) and other glassware ac- cording to the manner of Venice, and have the same for sale.” [27]

By the 17th century, the concept of patenting had spread to England. [28] The Statute of Monopolies was enacted in response to the practice of granting “letters patent” by the English Crown. [29] The right to exclude provided by the “letters patent” extended beyond inventions and encompassed entire fields of economic activity. Examples of granted monopolies in “letters patent” include soap, leather, and glass. [30]

After Queen Elizabeth I granted fifty letters patent in a span of fewer than fifty years, there was significant public discontent by citizens that felt Queen Elizabeth I had abused her power. [31] In response to the alleged abuses of this right, King James I banned all monopolies except “projects of new invention” when he took power. This rule was later adapted by the English parliament in 1624 through the “Statute of Monopolies.” [32] Over the next 100 years, English case law developed around the Statute of Monopolies. This case law would form the foundation of the modern-day U.S. patent system.

III. UNITED STATES PATENTS

In the early days of the colonial period, there were no formalized means for obtaining a patent. [33] An inventor could apply to the colonial government and ask for an exclusive right, but there was no formalized procedure for doing so. It was not until June 21, 1788, when the U.S. Constitution was ratified, that a formal means for obtaining a patent was developed. [34]

According to Thomas Jefferson, “the patent monopoly was not designed to secure to the inventor his natural right in his discoveries. Rather, it was a reward, an inducement, to bring forth new knowledge.” [35] Despite the evolution of the patent system from ancient civilizations to today, the fundamental concepts remain the same–to promote the progress of science and the useful arts. [36]

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REFERENCES

[1] Pfaff v. Wells Elecs., Inc., 525 U.S. 55 (1998)

[2] Frank D. Prager, The Early Growth and Influence of Intellectual Property, 34 J. PAT. OFF. SOC’Y 106 (1950)

[3] Id.

[4] ATHENAEUS, DEIPNOSOPHISTAE, bk.1, ch. 1, https://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A2013.01.0001 [https://perma.cc/5ZNU-6L2R] (last visited Nov. 21, 2022).

[5] Athenaeus, Deipnosophistae, BRITISH LIBRARY, https://www.bl.uk/collection-items/athenaeus-deipnosophistae [https://perma.cc/WFL2-NPVB] (last visited Nov. 21, 2022).

[6] Athaneus, supra n.4.

[7] Id.

[8] Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93 (2016).

[9] Gene Quinn, The Law of Recipes: Are Recipes Patentable?, IPWATCHDOG (Feb. 10, 2012, 6:04 PM), https://www.ipwatchdog.com/2012/02/10/the-law-of-recipes-are-recipes-patentable/id=22223/ [https://perma.cc/XG5S-RFF7] (last visited Nov. 21, 2022).

[10] Sefania Fusco, Lessons from the Past: The Venetian Republic’s Tailoring of Patent Protection to the Characteristics of the Invention, 17 NW. J. TECH. & INTELL. PROP. 301 (2020), https://scholarlycommons.law.northwestern.edu/njtip/vol17/iss3/1 [https://perma.cc/2RLS-BHHW] (last visited Nov. 21, 2022).

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Ben McEniery, Patent Eligibility and Physicality in the Early History of Patent Law and Practice, 38 U. ARK. LITTLE ROCK L. REV. 175 (2016), https://lawrepository.ualr.edu/lawreview/vol38/iss2/2 [https://perma.cc/99SF-AZWF] (last visited Nov. 21, 2022).

[16] Id.

[17] Id.

[18] 35 U.S.C. § 103.

[19] Stefano Comino et al., The Diffusion of New Institutions: Evidence from Renaissance Venice’s Patent System (Nat’l Bureau of Econ. Rsch., Working Paper No. 24118, 2017), https://www.nber.org/papers/w24118 [https://perma.cc/R3XJ-RDFV].

[20] Id.

[21] Fusco, supra n.10.

[22] Comino et al., supra n.19.

[23] Id.

[24] Id.

[25] Fusco, supra n. 10

[26] Id.

[27] Id.

[28] The History of Patents, WILSON GUNN HISTORY SINCE 1864, https://www.wilsongunn.com/history/history_patents.html [https://perma.cc/Z6P6-A5R3] (last visited Nov 21, 2022).

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] The Origins of Patent and Copyright Law, CONST. RTS. FOUND., https://www.crf-usa.org/bill-of-rights-in-action/bria-23-4-a-the-origins-of-patent-and-copyright-law [https://perma.cc/YM6B-VNVM] (last visited Nov 21, 2022).

[34] Graham v. John Deere Co. of Kan. City, 383 U.S. 1 (1966)

[35] Id.

[36] U.S. CONST. art. I, § 8, cl. 8