A Brief History of Patents: Patent Law Past and Present

The role and function of patents in the United States go right back to the original constitution and the thinkers who produced it. But the history of patents actually goes back much further than that, and U.S patent law followed in a tradition that was already centuries old. The Venetian Patent Statute (pictured above) goes all the way back to 1474 — the very period during which the capitalist system itself was emerging from the decline of feudalism. While patent law is always changing and evolving, the statutes laid out in that document nearly six centuries ago are today still the basic principles of patent law.

The Venetian Patent Statute — 1474

The oldest recorded document which specifies in broad terms a codified patent system, the Venetian Patent Statute established by the Republic of Venice was the first statutory patent system in Europe. The practice of patent rights certainly preceded the writing of this particular document, but what makes the Venetian Statute so interesting historically is that it represented the first time that patent customs were codified in a generally applicable, well-defined, and broad manner.

Before the Venetian Patent Statute, patents were awarded on a case-by-case basis in response to individual requests for protection by petitioners. Ever since the Statue, though, the conditions specifying the rights of inventors to seek patent protection were well defined. They state that “any new and ingenious device, not previously made” which served some useful purpose was eligible for patent protection.

This immediately recalls the current USPTO patent law which requires that a patentable invention be novel and useful. Unlike contemporary patent law though, there was no cost for applying for protections under the Venetian Patent Statute. Between 1474 and 1788, some 2000 patents were granted by the Venetian Senate. To compare that with modern patents, the USPTO received 615,243 patent applications just in 2014.

The English Statute of Monopolies — 1624

The first statutory patent system in England, the Statute of Monopolies was introduced in an attempt to curb abuses of the previously existing patent customs in England by the monarchy. Not wanting to incur public displeasure by raising taxes, monarchs like Elizabeth I and James I abused the patent system to generate funds by extorting patent holders. Elizabeth I would even issue patents for common commodities like salt, and would then charge increasingly burdensome fees to patent holders.

The Statute of Monopolies was eventually introduced to curb these monarchical abuses and take some of the authority for administering and granting patents out of the hands of the regents. As with Venice, prior to the Statute patents were granted by the rulers in accordance with custom and common law, without judicial review or oversight. Unlike modern patents (or like the earlier Venetian Statute), these patents were awarded not only for novel and useful inventions, but for all sorts of economic activity. In 1537, for example, Antonio Guidotti was granted a 15 year patent giving him a monopoly on silk growing.

Rather than being granted in recognition of Guidotti’s contribution of a new method of silk production as a modern patent might, this was rather an attempt to incentivize skilled craftspeople to move to the island by offering them monopolies in their field. Unlike the Venetian system, these patents could be extremely costly, and were preferred by the monarchy as a system of revenue generation. And so they were ripe for abuse. The terms of the monopolies granted by these patents grew longer and longer and came to include such common and essential commodities as salt and starch.

The Statute of Monopolies was eventually passed by the English parliament to curtail these abuses. First and foremost, it annulled all existing and future monopolies which had been granted under the previous system, declaring them “altogether contrary to the Laws of this Realm, and so are and shall be utterly void“. The Statute went on to list the conditions under which patent protections could be granted. Those conditions were:

• Monopolies could last no longer than 14 years
• Protections could only be granted to the “true and first inventor” (a stipulation echoed by the USPTO’s “first to invent” laws which were in effect until the America Invents Act of 2011).
• Patents could not be “contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient“

While the Statute did not completely end monarchical abuses of the patent system, it represents a critical moment in the history of patent law, and of the development of capitalism in England. The statute remained a central document of patent law in the United Kingdom until the European Patent Convention of 1971, and formed the basis of Australian patent law to boot.

U.S Patent Law: The Patent Act — 1790

Prior to the revolution and the ratification of the U.S Constitution in 1787, patent law in the American colonies was handled in an ad-hoc sort of way, with no general laws governing patent rights until the early 1780s when certain states began introducing their own statutes. This all changed with the Constitution and the Patent Act of 1790, which established the basis of patent law which has regulated intellectual property rights in the U.S to this day.

Patent rights are enshrined within the constitution itself. Article 1 Section 8 states:

“The Congress shall have 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.”

These rights were further specified in the Patent Act of 1790. The act gave the responsibility of granting and administering patents to the Patent Board. There were only three members of the Board, and they were the Attorney General, the Secretary of State, and the Secretary of War. Predictably, the patent process was quite slow at first, as these three would have to schedule meetings in which to discuss the applications they had received.

Applicants had to submit a written description of their invention, as well as drawings if possible. This had to both adequately describe the invention as well as serve as instructions which could be followed for the replication of the invention by others. Initially, applicants also had to complete an examination, though this requirement was quickly dropped by the Patent Act of 1793.

In cases of infringement, a jury was summoned to determine whether a patent holder was entitled to damages. Convicted infringers would have to forfeit all their infringing items to the patent holder, and patents could be repealed if they were found to be infringing upon a previous claim. The flip side was that if one brought an accusation of infringement against someone else but lost, they would be made to pay the costs of the case.

Patent Law in Revolutionary France — 1791

The revolutionary government in France established laws for the patenting of inventions in 1791. Applicants were not required to specify what was new about their inventions, and somewhat strangely there would be no actual examination of the applicant’s claims. The patentee could request protection for 5, 10, or 15 years, which the fees paid varying in accordance with the period specified.

Patents from this period came with the disclaimer printed on them that “The government, in granting a patent without prior examination, does not in any manner guarantee either the priority, merit or success of an invention.” As with modern patent systems, certain types of innovation were deemed ineligible for patent protection. These included:

• Scientific discoveries without any practical application (similar to current laws which disallow patents for scientific laws)
• Medicines (very much unlike current patent laws)
• Financial methods
• Anything which could be protected by copyright law

Interestingly, French patent law at this time forbade inventors from disclosing their inventions abroad. Patents were voided if the inventor attempted to patent their invention in a foreign country, a policy intended to keep French innovation in France. This is a far cry from the modern Patent Cooperation Treaty. A patent holder had to put their invention into practice within two years of acquiring the patent or else risk forfeiting their exclusive rights.

As with modern patents, the deal was that in exchange for the exclusive rights afforded by the patent, an inventor would be obliged to describe in clear language how a person might go about replicating the invention themselves. While the French system at the time did not provide any mechanism for the publication of these disclosures, this would foreshadow the later publishing of patents by the USPTO and other patent offices.

Up To The America Invents Act — 2011

American patent law underwent several modifications following the original Patent Act of 1790. The first was a revision in 1793 to streamline the application process. This was followed by the Patent Act of 1836. Patent law then faced stiff criticism during the Great Depression, which saw the eventual passage of the Sherman Antitrust Act which sought to curtail the power of monopolies. The Patent Act of 1952 introduced the requirement that patents be ‘non-obvious’, in addition to being novel and useful. T

his amendment was made to prevent unscrupulous persons from claiming patents over what ought to be considered common knowledge. The most significant change to U.S patent law in recent times has been the America Invents Act of 2011. Going back to English Statute of Monopolies which informed U.S patent law up til this point, patent rights were awarded to whoever could demonstrate that they were the first one to invent the thing in question.

This seemingly sensible requirement led to certain complications. With the sheer number of patent claims now faced by the USPTO, it became difficult sometimes to establish who had been the first inventor. This led to the prevalence of “interference proceedings”, where inventors would compete in attempting to demonstrate that they had been the first inventor in order to claim patent rights.

With the America Invents Act of 2011, U.S patent law switched from a “first to invent” system to a “first inventor to file” system, thereby eliminating interference proceedings entirely. Under U.S patent law, it no longer matters much who invents a thing first, what matters is which inventor files a patent application first.

It’s important to note that not anyone can file a patent application — you still have to be an inventor. So, if two people both invent a new device, the first of them to file a patent application will be awarded the patent. The law does not allow someone who had not invented that device to preempt either of the inventors by filing for a patent for their invention.

 Patent law has a long and interesting history. It’s still changing today! There are now millions of patents on file with the USPTO alone — that’s not counting all the patents recognized by foreign offices! It’s no wonder the entire process can seem daunting. If you need help with any aspect of the patenting process, consider Cad Crowd’s patenting services. We help clients with utility patent applications, design patents, and USPTO patent searches. For more information on patents, see our Patent FAQ.