History of English Patent Law

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September, 1959, Vol. XLI, No. 9
Historical Background of the English

Patent Law
By RANON A. KLITZkE *
The English were not the first to grant patents to in-

ventors but they were the first to develop a lasting patent
law. The patent system of the United States, originating
at a time when the English law was in full flower, drew
heavily from it and might never have come into being at
all had the English law not been what it was in the eight-
eenth century. By this time the English lawyer had been
victorious over the old monopoly abuses and had pro-
vided the fathers of our country with history from which
considerable profit could be taken. Knowing the problems
England had had it was an easy matter to avoid Ihe pit-
falls of a monopoly system and create a body of law
which began where the English law had left off.
Because we interpret and apply our patent law in the
light of its history and because this history extends back
to the beginning of the English law, there is value in the
study of the early efforts of the English people. To fully
kniow our patent law we must be familiar with its origin.
The basic truths found by the English 400 years ago are
still valid today and should continue to influence us in the
interpretation and application of our law, even though it
has become greatly refined and perfected.
It is, therefore, an object of this paper to illuminate
some of these dusty truths from the Elizabethan era and
it will seem that, although the years have clouded our
view of them, they are substantially the same today as
they were then.
I. THE LETTERS PATENT
A Letters Patent for an invention is a monopoly. In
the United States the monopoly is:
* a grant to the patentee, his I-eirs or assigns, for the term of
seventeen years, of the right to exclude others from -naking.
using, or selling the inventien throughout the United States.'
* Associate Professor of Law, Texas Southern University, Houston, Texas.
Member
1
of the New York Bar.
The Patent Act § 154, 66 Stat. 804 (1952), 35 U. S. C. § 154 (1952).
Journal of the Patent Office Society
In England it is the "sole privilege" to "make, use, exer-

cise and vend" 2 the invention for sixteen years.3 The
United States inventor receives a negative right, the
English a positive one.
The ancient Greeks originated the term "monopoly."
It is derived from ... (alone) and . . . (to sell) and was
first used by Aristotle in 347 B. C. 4 For the purpose of
this paper, a monopoly will mean a privilege consisting
of the exclusive right to carry on a particular business or
trade, manufacture a particular article, or control the
sale of the entire supply of a particular commodity.' We
need deal here only with monopolies granted by the
sovereig n.
A grant of a Letters Patent was a personal and direct
grant of some dignity, office, monopoly, franchise or other
privilege by the English sovereign through the exercise
of the royal prerogative and was recorded on the Patent
Rolls in the Record Office. The documents received by
the patentee were called Letters Patent, the term being
derived from the Latin literae patentes or "Open Let-
ters" because they were addressed, not to particular in-
dividuals, but "To all to whom these presents shall
come." The documents were traditionally sealed so that
they could be read without breaking the seals, while
"Letters Close" could not be read without first breaking
the seals.
This paper will be concerned with the history of Let-
ters Patent for inventions. It will be necessary, however,
to consider monopoly grants other than those for inven-
tions to fully understand what kind of a privilege the
inventor received. A short summary of some of the more
important early developments outside of England before
the bego_.inning of English patent law will be helpful.
2 16 -alsbury's Statutory Instruments 121 (1953).
,9The seventeen year term in the United States dates from the date of
issuance of the patent whereas the sixteen year term in Great Britain dates
from the date of the filing of the complete specification.
4 Aristotle, Politics, bk. I, chap. XII, 48.
5 Black's Law Dictionary 1158 (4th ed. 1951).
eGomme, Patents of Invention I (1946).
II. EARLY MONOPOLIES OUTSIDE OF ENGLAND
The First Monopolies

Athenaeus, writing in the third century A. D., in his
"Banquet of the Learned," quotes Phylarchus, the his-
torian, as saying that in about 500 B. C. in Sybaris, a
Greek colony famous for luxurious living and self-indul-
gence, if any confectioner or cook invented a peculiar and
exclusive dish, no one else was allowed to make it for a
year.7 In A. D. 337 the Roman Emperor Constantine de-
creed that. artisans of certain trades who resided in cities
were exempt from all civil duties, especially if their
leisure hours were employed in perfecting themselves
and instructing their sons. Among the artisans so privi-
leged were the locksmiths, chariot makers, engineers,
workers in lead and manufacturers, which groups prob-
ably included most the inventors of the time.' While this
was no monopoly grant, it was the grant of a privilege
and a recognition of the value of rewarding those work-
ing in the arts and sciences. The Romans were, in fact,
distasteful of monopolies. The Emperor Zeno, in A. D.
483, made it clear that there was to be no monopoly of any
kind over clothing or food, regardless if it was procured
under a rescript of an emperor 9
The Dark Ages provide us with no allusions to mo-
nopolies but in 1105 a diploma was granted to a Norman
7 Athenaeus, "The Deipnosophists," 3 Bohn's Classical Library 835 (1854).
8 Code of Justinian, X, LXIV, 1; 15 Scott, The Civil Law 155 (1932).
The following artisans were listed in the edict:
architects wood carvers glaziers
physicians gilders workers in lead
painters workers in stucco mirror makers
sculptors silversmiths ivory workers
workers in marble brokers furriers
manufacturers of founders fullers
chests or beds manufacturers carpenters
locksmiths engineers plasterers
chariot makers potters and ten other trades,
builders (masons) goldsmiths not translatable
In A. D. 344 surveyors, geometers and architects occupied in dividing
land and other property and who took measures, established boundaries,
conducted or removed water were added to the above list. Code, X,
LXIV, 2.
9
Code, IV, LIX, I.
Abbot by Count William of Mortagne, authorizing him to

establish windmills in a certain area. This is the first
historical mention of windmills." ° Benjamin of Tudela,
who travelled around Europe and the Near East about
1160 to 11-73, in his "Itinerary" reported that the King
of Jerusalem granted annual fees to certain dyers and at
that time dyeing consisted of trade secrets.11 In 1236 the
English King Henry IT1, who also ruled western France,
confirmed a grant by the Mayor of Bordeaux to Bona-
f)isus de Sancta Columbia under which he and his fellows
alone in Bordeaux were permitted to make cloths of many
colors after the manner of the Flemings, French and
English for fifteen years, after which time anyone could
make the cloths aiid Bonafusus was to have no advan-
tage 12 These early grants of privileges were not neces-
sarily for inventions and did not all result iii monopolies.
One of the first real patents for invention was granted
by the Signoria of Florence to Fillippo Brunelleschi, the
great engineer and architect of the magnificent cupola of
the cathedral of Florence. The patent privilege was
given in 1421 for three years for a device for transport-
ing heavy loads on the Armo and other rivers. The work
of anyone imitating his invention was to be burned."3
V enice
The world's first patent law developed in the early
Republic of Venice. Around 1400 she largely monopolized
the trade between Europe and the rest of the world and
possessed great power and wealth until the discovery of
the sea route to the East around the Cape of Good Hope.
It is known that Venice maintained a special privilege
fund in 1332 from which a payment was made to one
Bartolomeo Verde, who promised to build a windmill
within six months of the payment. Other payments from
this fund were repeatedly made in the fifteenth century
10 Frunkin, The Origin of Patents, 27 j. P. 0. S. 143 (1945).
11Id. at 143.
12 Gomme, Patents of Invention 5-6 (1946).
13 Id.at 6.
to persons claiming knowledge of millwork and ship de-

sign and probably to many others.14
In 1469 a Venetian patent of monopoly was granted to
John of Speyer, a German printer who established him-
self on the Lagune. John's patent states that it was usual
to grant such monopolies."5 After this time patents were
granted systematically and the custom was confirmed by
a written pronouncement in the nature of a statute or
administrative decree in 1474 in which it was said that:
Privileges of ten years are generally promised to the inventors
of new arts and machines. 10
A substantial number of patents and copyrights were
granted in Venice between 1500 and 1550. In 1568 Andrea
Brugone obtained a patent for printing in red and black
and Francesco Zamberlin received a patent in 1572 for
certain types of mirrors. Many other grants were made
and decrees were obtained enforcing them. As Venice
declined in power skilled artisans and inventors, many of
them expert glass makers, began migrating to other coun-
tries. Most of them went to France but, after the mas-
sacre of St. Bartholomew in 1572 and the subsequent ex-
treme religious intolerance, many of them migrated to
England, Holland and Germany. 7 Being familiar with
the Venetian patent system they were eager to obtain
similar protection in their new homelands.
One of the most interesting patents granted by Venice
was that to Galileo in 1594. From 1592 to 1610 Galileo
was Professor of Mathematics at Padua, which was then
part of the Republic of Venice. He developed a machine
for raising water which was successfully operated in the
garden of the Contarini in Venice. A patent for the de-
vice was granted, giving Galileo the sole right to make
or use such a machine for twenty years. Tnf ringers would
lose their machines and be required to pay a fine of 300
ducats."i
14 Prager, A History of Intellectual Property From 1545 to 1787. 26
J P. 0. S.711 (1944).
lId. at 715.
16Id. at 750.
17 ld. at 715-20.
IS Federico. Galileo's Patent, 8 J. P. 0. S. 576 (1926).
Journal of the Patent O/flice Society
Other countries also granted a few patents about this

time. In 1545 the Emperor Charles V of Germany
granted one Hans Hedler a twelve year patent for wind
and water mills and other grants are known to have been
made at the same time in the Saxon and German states.
Patents are also recorded in Antwerp, [Jolland and Spain
in the sixteenth century.19
France
The French patent law developed about the same time
as the English law, although the English were subse-
quently much more successful industrially with their law.
French inventors were officially encouraged in about the
same manner as they were in Venice.20
In 1536 the French Consular Government of Lyons,
with the consent of King Francis I, granted Etienne Tur-
quetti from Piedmont a privilege for the production of
silk. Turquetti obtained safe conduct for his workers,
who came from Genoa and other countries, and also re-
ceived the right to collect royalties from silk makers in
Lyons who established there after Turquetti. His privi-
lege also made him exempt from taxes and under it he
could obtain loans and other aid. The privilege was non-
exclusive and hence non-monopolistic.21
The first monopoly patent in France was granted to
another Italian, Theses Mutio, of Bblogna, in 1.551 for the
art of Venetian glass making. It was to run for ten years
but it was registered by the Parliament de Paris for only
five years. In the same year a French inventor, Abel
Foullon, was granted a patent for a range finder which
was also to run for ten years. 2 2 The French King Henry
II felt at this time that the inventor should fully disclose
his invention so the public could benefit from it when the
patent expired and Foullon was required to prepare what
became printed in 1555 as the first patent specification.
In 1557 Henry II issued an exclusive right to one Gran-
19 Gomme, op. cit. supra note 12, at 8.
20 Prager, op. cit. supra note 14, at 711-21.
21 Id. at 722-3, 751.
22 Id. at 723. Gomme, op. cit. supra note 12, at 8.
jon, a printer, who designed "Caractare de civilit6" type,

a kind of printing type which is no longer used. Aldus
Manutius had earlier received a Venetian patent in 1502
for a new slanted type still in use today, called italic.2 3
Between 1550 and 1600 French patents of monopoly
were granted on an average of one every two years. In
England at this time about one monopoly patent per year
was granted and possibly even more. The smaller num-
ber of patents in France is probably due to the fact that
fewer inventors cared to migrate to that intolerant king-
dom and there was a thorough and continuous parlia-
mentary interference with the free granting of unde-
served monopolies. 2 4 Also, the French monarch, although
having less power than the English Crown, actively par-
ticipated in industry and was reluctant to grant mono-
polies to private individuals. 5
During the Middle Ages, although probably not in the
sixteenth century, the industrial progress of France was
superior to that of England. Its political, social and
economic integration, however, had not progressed as far
and guild regulations, which were contrary to a national
monopoly system, were strengthened. Monopolies to
private individuals were thus discouraged in France.
Systematic granting of patents in France did not occur
until the end of the sixteenth century and this may well
have been in imitation of the English system. 26
Guilds
A sumnmary of the history preceding the English patent
law would not be complete without reference to the early
guilds. During the Middle Ages mercantile enterprises
were extremely hazardous. As towns arose in the eleventh
century merchants began to protect themselves by form-
ing guilds, obtaining by charter the sole right of regula-
ting trade within a town. They could thus monopolize all
trade, including not only the sale of goods but also all
23 Frunkin, op. cit. supra note 10, at 145.
24 Prager, op. cit. supra note 14, at 724.
25 P ice. English Patents of Monopoly 5 (1913).
26 Ibid.
manufacturing. These were group monopolies and were

never granted to one person.7'
Within the guild there was free competition in selling
and manufacturing but competition from outsiders was
prevented. Trade was carefully regulated and price
maintenance was practiced. Occasionally the guild mern-
bers abused their monoply power and control by local
government authorities was necessary.28
The most powerful of the merchant guilds of the
Middle Ages was the Hanseatic League. It was founded
in trading centers near the coasts of the Baltic Sea about
the beginning of the thirteenth century. By the end of
the fourteenth century sixty-four principal cities were
members and at one time there were eighty-live city mem-
bers. London was the only English port admitted to
membership 29 but m6st English commerce was controlled
by the League until the fifteenth century. In 1428 the
League equipped two hundred and forty-eight ships car-
rying 12,000 soldiers against Eric of Denmark.3"
With the diversification of trades in the twelfth cen-
tury craft guilds began to be formed. A craft guild usu-
ally comprised all the artisans in a single branch of
industry in a certain town. During the fourteenth cen-
tury the cloth craft guilds became quite powerful by ob-
taining monopolies from the sovereign. Gradually the
single merchant guild in a town was replaced by separate
craft guilds for each of the various trades and handi-
crafts. The regulation of trade and prices became the
power of these separate bodies and even wages and work-
ing conditions were regulated. By the fifteenth century
every town having twenty men had a guild of its own.
27 Fox, Monopolies and Patents 32 (1947). Guilds were known to exist
much earlier than this time. They were gradually degraded to state super-
vised agencies, complete state control being established in Alexandria by
100 B. C., in Constantinople by A. D. 800, in Venice by 1300 and in France
by 1650. Prager, op. cit. supra note 14, at 713.
28 Fox, op. cit. supra note 27, at 32.
29Ibid. The League had been encouraged to settle in London by
Henry IIl, who gave it many privileges so trade could be monopolized.
These monopoly privileges were finally rescinded and given to English
merchants. I Walker on Patents 6 (Deller ed. 1937).
,30I Robinson on Patents 4 (1890).
September, 1959, -Vol. XLI, No. 9
These guilds had monopolistic powers which were fre-

quently abused. Like the merchant guilds, the craft
guilds were still group monopolies. Private monopolies
were still to come." The guilds set the stage for the sub-
sequent private monopoly patents. It was an easy step
from the guild monopolies to the private monopolies,
once the sovereign had fully established his power over
the regulation of the trade. The early patents for inven-
tion, however, were often in conflict with the guild char-
ters and had to be carefully drafted. This is readily
apparent from the Letters Patent of protection granted
to foreign artisans by the Crown to induce them to come
to England and practice their trades. We turn now to
these early grants.
III. ENGLISH GRANTS BEFORE THE SIXTEENTH CENTURY
The Letters of Protection

English industry was far behind the rest of the world
during the Middle Ages. As late as the sixteenth cen-
tury England was comprised mainly of pastoral and min-
ing communities. The English sovereigns were, there-
fore, eager to induce skilled artisans to come to England
and develop manufacturing industries. Edward II and
Edward III deliberately fostered English industry. Not
only did they carefully regulate it in England but they
also attracted new industries from abroad by offering
letters of protection to foreign artisans. As early as
1324 Edward II invited highly skilled German miners to
come to England and gave them the king's protection.
Edward IV and his Tudor successors repeated such
invitations."
The first English manufacturing industry to gain any
importance was the cloth industry. This craft, more than
any other, was developed through early privilege grants.
In 1327 Edward III proclaimed in London that the wear-
ing of foreign cloth was prohibited and,
31 Fox. op. cit. supra note 27, at 35-8.
32 Id. at 42.
3.3Gomme. op. cit. supra note 12, at 9-10.
. in order to encourage people to work upon cloths, the king

would have all men know that he will grant franchises to fullers,
weavers, dyers and other clothworkers who live mainly by this
mystery whenever such franchises are asked for.3 4
It was not long before such a franchise was asked for.
In 1331 the earliest royal grant having the avowed pur-
pose of instructing the English in a new industry was be-
stowed upon John Kempe from Flanders and his com-
pany, who were weavers, dyers and fullers of woolen
cloth. The king took John under his special protection
L:ecause lie had come to England to engage in his trade
and instruct apprentices. The grant recited that any
others who would be willing to cross the sea for the same
reason would also be protected.3 1 In 1336 two weavers
from Brabant were given similar letters to settle at
York," and other cloth workers from Brabant settled in
London and Bristol with such letters. " Many comparable
grants quickly followed to fullers and weavers from the
Low countries who migrated to England in considerable
numbers. This system of protection is one of the main
reasons the English woolen industry was so advanced
during the sixteenth and seventeenth centuries.
The Letters Patent of protection granted to John
Kempe and other weavers at this time were like pass-
ports which allowed them to come to England and prac-
tice their trade. No monopoly and no immunity to author-
ity was granted. 9 Industry was still under the control
of the guilds and the alnager and his officers supervised
the character of the cloth sold. Protection of the immi-
grant workers was necessary to overcome the strict guild
regulations against competition and, as the number of
these patents increased, the guild power declined. This
34 Ibid.
25 Hulme, The History of the Patent System Under the Prerogative and
at Common Law, 12 L. Q. Rev. 141 (1896); Gomme, op. cit. supra note 12,
at 10; Fox, op. cit. supra note 27, at 43.
361 Walker on Patents 3 (Deller ed. 1937).
.7 Fox, op. cit. supra note 27, at 46.
38 Gornme, op. cit. supra note 12, at 10.
39 Hamilton, Patents and Free Enterprise 11, T. N. E. C. Monograph
No. 31 (1941).
September, 1959, Vol. XLJ, No. 9
was the beginning of a deliberate and vigorous policy to

expand English industry which Edward 40
III and his suc-
cessors pursued with excellent results.
In 1337 the 1327 proclamation of Edward III was im-
plemented by an Act of Parliament which provided that:
...all the clothworkers of strange lands of whatsoever country
they be which will come to England Ireland Wales and Scotland
within the king's powers shall come safely and surely and shall
be in the king's protection and safe conduct to dwell in the same
lands choosing where they will, and to the intent the said cloth-
workers shall have the greater will to come and dwell here our
sovereign lord the king will grant them franchises as many and
such as may suffice them. 41
Edward III extended this policy to other trades. Linen
weavers were brought from Flanders and three clock
makers came to England from Delft in 1368 for a, short
period. The English silk trade, which had been brought
to England by the importation of foreign artisans, was
itself protected from imports by a series of statutes be-
ginning in 1329.42 During the reign of Richard II the
manufacture of silk and linen was well established in
London, but whether by Letters Patent or otherwise is
not certain.
The King's Prerogative
The right of the Crown to grant privileges for new
trades was recognized very early. In 1367 a case was
decided in which it was said that the arts and sciences
were for the public good and greatly favored in law. The
king, as chief guardian of the common weal, had the
power and authority by his prerogative to grant many
privileges for the sake of the public good although, prima
facie, they appeared to be clearly against the common
right. This indicates that the right of the English sover-
eign to grant privileges was of ancient origin and was
derived from the early common law.44
4111 IEdw. II1, c. 5 (1337).
" Hulme, op. cit. supra note 35, at 143.
44 Hindmarch, Patent Privileges for the Sole Use of Inventions 3 (1847).
626. Journal of the Patent Office Society
A monopoly right, as opposed to a mere privilege,

while also obtainable from the sovereign, was in deroga-
tion of the common right of freedom of trade and could
not be granted without some consideration moving to the
public. Even in the early days there were limits beyond
which the sovereign could not tread and Parliament did
not hesitate to. insist upon observance of Chapter 41 of
the Magna Carta, which declared that all merchant
strangers in the realm should be allowed to buy and sell
their goods by the old and rightful customs. In spite of
this, royal grants of trade monopolies were so common
that statutes were passed in 1336, 1352 and 1354 opposing
such grants. In 1373 Edward III granted to John Peaehie
the sole importation of sweet wine into London and in
1377 Parliament declared this grant void. The Statute
of Cloths of 1378 is illustrative of the problem at this
time. It declared that all merchants could buy and sell
without disturbance within the realm, regardless of any
statutes, ordinances, charters, judgments, allowances,
customs or usages to the contrary. 5 It thus appeared that
the English people recognized the inherent dangers of
monopolies immediately and took steps to eliminate them
where trade was unduly hampered.
Letters Patent for Inventions
The letters of protection which the Crown extended to
foreigners beginning in the early fourteenth century
were for the purpose of establishing new industries
which, although unknown in England, were well known
in the countries from which the artisans came. E. Wynd-
ham Hulme, writing in 1896, claimed that the first patent
for a newly invented process was granted to John of Shie-
dame and his company in 1440. John was invited to
introduce a method of making salt on a scale theretofore
never attempted in England.46 This may or may not have
been the first English patent for an invention to an in-
ventor. It is certain, however, that it was still merely an
452 Ric. If, st. I, c. I (1378); Fox, op. cit. supra note 27, at 58-9.
46 Fox, op. cit. supra note 27, at 44; Hlulme, op. cit. supra note 35, at 143.
September, 1959,. Vol. XL1, No. 9
invitation to a foreigner to come to England, similar to

that extended to the German miners in 1324. The in-
ventor was not granted a monopoly.
There is some slight evidence that Henry VI granted
certain monopoly patents in 1456 for the making of a
philosopher's stone for medicinal and other purposes."
It is the better view that Henry merely appointed two
successive commissions to look into the matter. The
alchemical patents were probably either warrants for the
arrest of the individuals infringing the grants or were
dispensations from, the penal statute of 5 Henry IV,
which made the practice of transmutation a felony.4 8
Allan Gomme, librarian 6f the British Patent Office
until 1944, writes that the first English monopoly patent
for invention was granted on April 3, 1449, to John of
Utynam, who had returned to England from Flanders at
the king's command. Because John's art of making
colored glass had never been used in England and be-
cause John intended to instruct divers lieges of the king
in many arts never used in the realm besides glass mak-
ing, no one other than John was permitted to practice
these arts for twenty years unless John consented there-
to.4" John may not have been the actual inventor of the
process but to obtain a patent, this was unnecessary.
Even today in England a valid patent can be issued to the
proprietor of an invention who first introduces it into the
reahn, unlike the law of the United States, under which
only first inventors can obtain valid patents.
Like earlier patentees, John of Utynam promised to
instruct others in his art so that it could be developed in
England when the grant expired. Unlike the others,
however, John was granted a monopoly privilege under
which he could exclude others from practicing his art for
a period of time: This is probably the first English
patent for invention as it is known in England today.
47 Hamilton, op. cit. supra note 39, at 12; Hindmarch wrongly ascribes
these alchemical patents to Edward 111. Hindmarch, op. cit. supra note 44,
at 3.
48 Hulme, op. cit. su pra note 35, at 143-4.
50Id. at 11.
Journal of the Patent Offlce Society
The earlier grants were either for the introduction of

industries well known in foreign countries and not neces-
sarily invented by those artisans receiving the grants or
were patents for inventions which did not grant monopo-
lies, such as that to John of Shiedame for his newly in-
vented method of making salt.
The custom of attracting foreigners having special
skills was continued. In 1452 a grant was made to three
miners and their company, brought over from Bohemia,
on the ground of their possessing "meliorem scientiam
in Mineriis."51 Chancellor Moreton, in a message to
Parliament during the reign of Henry VII, noted that
the system of inviting and. protecting foreign artisans
was for the purpose of setting the people to work on
various handicrafts, making the realm more self suffi-
cient, eliminating idleness and preventing the drawing
out of English funds for foreign manufactures. 2 The
migration of foreign workmen left a lasting influence on
England. English industry advanced from a time of
Edward II when all goods other than articles of every-
day use were imported to a time when cloth making,
mining, metal working, coining, ordnance production,
glass making, engineering, clock making, sugar manufac-
turing and paper manufacturing were all well developed3
industries due to the introduction of foreign artisans.1
IV. THE SIXTEENTH CENTURY BEFORE ELIZABETH
The English patent law made greater advances in the

Tudor period than in any other period of history. It is
true that it was the Statute of Monopolies in the Stuart
era that limited monopoly grants and it is also true that
the prerogative under which the sixteenth century mo-
nopolies were granted existed and was used long before
that time. But the unprecedented and frequent uses to
which Elizabeth put her prerogative were quite unlike
any exercise of this sovereign power before. The six-
teenth century could well be called the birth years of the
English patent system.
51 Fox, op. cit. supra note 27; at 44; Hulme, op. cit. supra note 35, at 143.
52 1 Walker on Patents 3 (Deller ed. 1937).
53 Fox, op. cit. supra note 27, at 44-56.
The Beginning of the Regular Grants

The use of the patent privilege was well understood in
England by the middle of the sixteenth century. On
March 20, 1537, Antonio Guidotti, a Venetian who had
received papers of denisation from Henry VIII in 1533,
wrote from Messina, Italy, to Thomas Cromwell, the
King's Principal Secretary, saying that he had per-
suaded some Italian silk weavers to go to England and
practice their craft at Southampton. Cromwell was
asked to intercede with the king to grant Guidotti a
privilege for fifteen or twenty years to prevent others
from making Italian silk. No grant to Guidotti is re-
corded but the casual manner in which the privilege men-
tioned suggests that Guidotti was well acquainted with
the Venetian system and he assumed Cromwell would
understand what he wanted without much explanation.
The English were thus probably greatly influenced by
the earlier Venetian patent system. "4
In 1552 Edward VI granted a patent of invention to
Henry Smyth, a London merchant. The patentee in-
tended to introduce foreign workmen "mete and
experte" in the making of:
. . . brode glasse of like fasshion and goodes to that which is
commonly called Normandy glasse which shall not only be a
great commoditie to our said realme and dominions but also
bothe in the price of the glasse aforesaid and otherwise a benefite
to our subjectes and besydes that dyvers of theym maye be sett
to worke and get their lyvying and in tyme learne and be hable.
to make the said glasse them selfe and so from tyme to tyme
instructe the others in that science and feate. 55
Smyth received a monopoly privilege for twenty years,
under which:
No manner of person or persons not licensed, or auctorised by
the said Henry Smyth as is afore mencioned shall attempte or
presume to make any kynde of the said brode glasse commonly
wount to be called Normandy glasse or any other fytte for
wyndowes upon peyne or forfayture of all the same glasse by
54 Gomme, op. cit. supra note 12, at 8-9.
55 Davies, Further Light on the Case of Monopolies, 48 L Q. Rev. 396
(1932); Fox, op. cit. supra note 27, at 60-1.
any of theym so to be made and as they and eny of theym

regarde our expresse comaundment and entende too avoyde
that trouble and perell which shall ernestly and indelayedly
insue in this behalfe. ' 6
This was the first of the relatively numerous patent
grants of the latter half of the sixteenth century. As
had earlier patentees, Smyth promised to instruct others
in his art so that the industry could be practiced widely
when the grant expired. Note that this patent and the
patent to John of Utynam a hundred years earlier gave
monopoly privileges for twenty years. Other patent
privileges to individuals had not granted monopolies but
only privileges to practice the art in England. Before
this time the guilds had been the exclusive recipients of
monopolies but now individual inventors and individuals
who brought new industries from abroad were to receive
monopoly privileges similar to those the guilds had en-
joyed.
Although the patent to John of Utynam preceded the
Smyth patent by 103 years, there were no known inter-
vening grants. John's patent stands alone in the
fifteenth century and it was not until Henry Smyth that
the English system of monopoly patents to inventors for
inventions began as a regular custom. The patent to
Smyth was followed by a grant by Queen Mary in 1554
to Burchart Cranick of a twenty year sole license to
mine, break open ground, melt, divide and search for all
manner of metals 51 by a special method."
In the preamble of a statute of 1555 " reference is
made to certain merchants of Norwich who, having ob-
tained some Italian workmen, so improved the art of
making Russels, Sattens, Satten reverses and fustians,
that they competed successfully with their foreign rivals.
They were rewarded with a charter giving practically a
monopoly of the industry and other privileges. This is
the first historical reference to capitalistic speculative
enterprise embarked upon by the newly risen :iddle
50 Ibid.
57 Fox, op.* cit. supra note 27, at 61.
58 Gomme, op, cit. supra note 12, at 9.
591 & 2 Phil. & Mary. c. 14 (1555).
September, 1959, Vol. XL1, No. 9
class outside of the old merchant and craft guilds.

Wealth and political influence were acquired by the mid-
dle class in the sixteenth century due to the disappear-
ance of the old nobility during the Wars of the Roses and
the redistribution of monastic property under Henry
VIII. Joint stock companies having English investors
began to appear at this time and it was no longer neces-
sary for the Crown to finance the entrance of foreign
artisans upon English industry because the enterprising
merchant class was acquiring resources and seeking
inventments6
The early Tudors practiced a perversion of the sover-
eign prerogative right unknown before them. Instead of
granting open letters for the furtherance of national
industry, the Crown began negotiating secretly to attract
foreign artisans into its own service. German armorers,
italian shipwrights and glass makers, and French iron
founders were brought to England in this manner. The
precise relation between the Crown and these people is
not known because these grants were not published and
were not recorded on the Patent Rolls. The Italian glass
makers came to England around 1550 under the protec-
torate of Somerset but were recalled by the Venetian
State. The French iron founders successfully estab-
lished the art of casting iron ordnance in the Weald
district and soon afterwards the old bronze cannons be-
came obsoleteY These practices contributed little to
the development of the system of granting patents for
inventions but they were some of the abuses to be remem-
bered by the Parliaments of the early seventeenth cen-
tury just bfore the Statute of Monopolies.
It is to the customs of Elizabeth, both abusive and
otherwise, that the English patent law owes the most in
its development. Whatever the earlier sovereigns may
have done, Elizabeth brought the attention of all England
to the Crown's prerogative and did more to cause the de-
velopment of patent law than all the other sovereigns
G0 lulme, op. cit. supra note 35, at 144-5; I Walker on Patents 3 (Deller
ed. 1937).
61Hulme, op. cit. supra note 35, at 144.
before her combined. The subject matter of the Eliza-

bethan grants, more than anything else, drew public
notice to Elizabeth's patent policies and it is to this sub-
ject matter that we now turn our attention.
V. THE SUBSTANCE OF ELIZA3ET:I'S GRANT,S
Elizabeth's Policies
As the last of the Tudors acceded to the English throne
the country was still far behind the Continent in indus-
trial arts. Elizabeth tried desperately to develop in-
dustry by importing skilled artisans and encouraging
enterprising men to undertake the risks of introducing
new industries. She was not without success. For ex-
ample, following the establishment of the French iron
founders in the Weald distict through secret negotia-
tions, the pressing need for ordnance at the beginning of
Elizabeth's reign was the cause of a number of patents
issued at William Cecil's (Lord Burleigh) insistence and
England's ordnance became the best in Europe by 1600.1'
Cecil was greatly desirous of making the realm self suffi-
cient by developing industry of every kind. He accom-
plished this by granting patents of monopoly after
careful inquiry into the novelty of the art and the pos-
sible public benefit. Ai attempt was made to introduce
new industry without disturbing the old 11 and, whatever
the abuses which resulted, at least the intentions behind
the monopoly grants were good.
Had Elizabeth confined her grants to inventors and
procurers of novel foreign inventions the loud cries of
Parliaments at the end of her reign may never have been
raised. The events of her reign were such that :many
persons were able to distinguish themselves in civil and
military activities and Elizabeth, being low in funds,
rewarded them with monopoly patents for their endeav-
ors. These grants would not have precipitated the in-
tense hatred of monopolies had her patentees not abused
their monopoly privileges by raising the prices of com-
modities and unreasonably restraining and harassing
62 FOX, op. cit. supra note 27, at 61, 67.
63 Id. at 67-8.
their competitors. 4 The most flagrant misuse of Eliza-

beth's prerogative was in the granting of monopolies in
industries which were already established in England.
It was such a grant that led up to the Case of the
Monopolies" and such grants were attacked most vig-
orously in the Parliament which passed the Statute of
Monopolies."6
Jacobus Acontius to the Queen
The Italian patent system must be credited with, if not
greatly influencing the English sovereigns at this time,
at least strongly suggesting rewarding of inventors by
monopolies. Reference has already been made to the
letter of Guidotti6 7 In addition to this letter, an undated
petition is to be found among the English State Papers
of 1559 in which one Jacobus Acontius (or James
Acontius, as Hulme calls him), an Italian by birth who
had been granted letters of naturalization in England
and who received a small Crown pension, prays for a
patent for his grinding machine. Guidotti had not
thought it necessary to explain the type of privilege he
desired but Acontius presents history with the first re-
corded reasons f'r granting Letters Patents for inven-
tions:
Jacobus Acontius to the Queen. Nothing is more honest than
that those who, by searching, have found out things useful to
the public should have some fruits of their rights and labors,
as meanwhile they abandon all other modes of gain, are at much
expense in experiments, and often sustain much loss, as has
happened to me. I have discovered most useful things, new
kinds of wheel machines, and of furnaces for dyers and brewers,
which when known, will be used without my consent, except
there be a penalty, and I, poor with expenses and labor, shall
have no returns. Therefore I beg a prohibition against using
any wheel machines, either for grinding or bruising, or any
furnaces like mine without my consent. 69
64 1 Walker on Patents 6-7 (Deller ed. 1937).
65Darcy v. Allen, 72 Eng. Rep. 830 (Moore 671), 74 Eng. Rep. 1131
(Noy 173), 11 Coke Rep. 86, 1 Abbott's Patent Cases I (King's Bench 1602).
6621 Jac. 1,c. 3 (1623).
67 Supra, note 54
68 Hulme, op. cit. supra note 35, at 148.
The petition of Acontius must be noted as one of the

most important events in the history of English patent
law. It may not have been the first attempt to convince
the Crown that an inventor has a property interest in
his invention which should be protected but it is the first
argument to this effect available to us in writing. Here
is Jacobus Acontius, a citizen of Trent, "poor with ex-
penses and labor," begging a prohibition against the use
of grinding machines without his consent, and, in the
centuries to follow, searching inventors, abandoning "all
other modes of gain," and often sustaining "much loss,"
were to come before their sovereigns like Acontins and
receive "some fruits of their rights and labors" to rec-
ompense them for their contributions to society. "Noth-
ing is more honest."
The patent grant to Acontius did not issue until 1565,
some fifteen grants by Elizabeth being made before his.
At least one writer feels it unlikely that six years would
have elapsed between the petition and the grant and
therefore the petition may have gotten among the 1559
papers in error and its true date might be 1565.70
The Subject Matter of the Elizabethan Grants
The best English soap at this time was soft -:'nottled
Bristol soap. Hard Spanish soap of Castile was em-
ployed for fine laundry work, for which the English soap
was unsuitable. On January 3, 1561, Elizabeth's first
patent grant was given to Stephen Groyett and Anthony
Le Leuryer for the making of "white sope." The grant
extended for ten years and stipulated that at least two
of the servants of the patentees were to be of native
birth (which indicates that the patentees were probably
aliens) and the white hard soap to be made wa.s to be as
good and fine as that made in the "Sope house of Triana
or Syvile." The patentees' wares were to be submitted
to the municipal authorities for inspection and, on proof
of defective manufacture, the privilege was to be void.7
This was the first of a long line of Elizabethan industrial
71 lulme, op. cit. su pra note 35, at 145.
monopoly licenses granted during the years 1561 to 1600.

At least fifty-five 72 ,such grants were made and possibly
more. Many of the patents were reissued up to three
times and, counting the reissues, Elizabeth's grants :.nay
number seventy-five or eighty. The manufactures .mo-
nopolized by these grants are astonishing. They cov-
ered :7
white soap Spanish leather house to house
saltpeter making water supply
dredging machines salt system
alum gIinding machines musical instruments
water drainage corn mill milling machinery
machines iron tempering sail cloth
ovens and furnaces dying and dressing vinegar
iron sulfate cloth starch
mining of gold, sil- mine drainage playing cards
ver, tin, lead and Frisadoes (clothes) zinc carbonate
other metals and knife handles window glass
ores earthen fire pots ale
sulfur Venetian glass
rape seed oil making
It seems fantastic that some of these commodities, for
example, salt, were monopolized by one or two individu-
als but such was the case and this is only a partial list.
Some of the grants were for inventions and others were
for the importation of the article or process into the
realm. In Elizabeth's time the term "invention" covered
discovery of inventions and arts of others outside of the
realm as well as origination of the invention in the in-
ventor's mind. 4 The terms, "invention", "discovery"
and "first finding out" are used indiscriminately on the
Patent Rolls and in the literature of the period and it is
difficult to determine which of these early patents were
for actual inventions. 5
72 Hulme, The History of the Patent System Under the Prerogative and
at Common Law, 12 L. Q. Rev. 141 (1896), continued at 16 L. Q. Rev.
44 (1900).
7a Hulme, op. cit. supra note 72.
74Fox, Monopolies and Patentq 62 (1947).
75Hulme, The History of the Patent System Under the Prerogative and
at Common Law, 16 L. Q. Rev. 44 (1900). In the earlier half of this
article Hulme states that the word "invenio" denotes primarily a physical
act rather than a mental process. 12 L. Q. Rev. 141, at 151.
r
VI. THE LEGAL CONSEQUENCES O ELIZABETH'S GRANTS
Analysis of Elizabeth's Grants

The Elizabethan grants may be divided into four main
categories."; First, there were those industrial monopo-
lies which were perfectly valid both at common law and
after the Statute of Monopolies. Included here were
grants for inventions originating in the minds of the in-
ventor and those communicated to an Englishman from
abroad. Other grants considered unobjectionable in
Elizabeth's day were those for the importation into the
realm of new products theretofore unknown and those
for new trades.
A second group of grants, also occasioning little objec-
tion, included special licenses dispensing with statutes
forbidding the import, export and transportation of cer-
tain commodities. These statutes were sometimes found
impractical and, instead of repealing them, it was custom-
ary to grant special licenses for their evasion. These
licenses were exclusive privileges but were not industrial
monopolies. The 1456 grants of Henry VI for the making
of a philosopher's stone were probably of this type.
A third category was comprised of those objectionable
patents granting a power of supervision over a trade or
industry. Among these were the grants for the supervis-
ion of inns and alehouses, because of which Mompesson
and Michell were impeached in 1620-1. This type of grant
was hated more than any other kind of monopoly and, had
Elizabeth not made these, the Parliaments of James I
probably would not have attacked monopolies so vigor-
ously. Even in her patent grants for inventions and new
industries, Elizabeth frequently granted the right of
supervision, search, seizure and arrest of infringers. The
energetic exercise of these rights by many patentees wa.,
extremely distasteful to the people.
76 The classification is that of Lipson but I have renumbered the cate-
gories. 3 Lipson, The Economic History of England 352-6 (1929). See
also Davies, op. cit. supra note 55, at 397-8; Fox op. cit. supra note 74,
at 62-5.
Sept ember, 1959, Vol. XLI, No. 9
In a fourth category are found the grants to an in-

dividual or group of the sole right to engage in an al-
ready established trade or industry. These patents were
invalid for want of consideration moving to the public
since people were restrained from a liberty they posses-
sed before the grant. Many of the patentees in this group
vexatiously interfered with trade and became great
nuisances. Before Elizabeth's time this type of grant
had affected primarily alien merchants and importers.
But now that Englishmen began to suffer under them they
precipitated great public dismay. Some patents which
had originally been good eventually found their way into
this category. For example, the 1561 grant to Groyett
and Le Leuryer, initially quite valid under the common
law, since their method of making hard, white soap was
novel in 1561, degenerated into a series of additional
grants long after the manufacture of white soap and the
trade therein had ceased to be novel. Similarly, a 1588
grant to Richard Young of the right to import, make and
sell starch made from bran of wheat 'I was reissued a
number of times and as late as 1661 the Company of
Starch Makers still exercised the monopoly given in the
original grant.7
Comnparison with Today's Patents
Although Queen Elizabeth seemingly subscribed to the
theory of Acontius, that an inventor had a common law
property right in his idea which existed apart from any
privilege bestowed under the sovereign's prerogative,
she continued to assert her absolute right of jurisdiction
in all cases of dispute arising out of her grants. This
attitude stemmed from the law before Elizabeth, under
which the sovereign was the sole patron and had com-
plete control over the new industry introduced into the
realm under the protection of Letters Patent. Few indi-
viduals dared to dispute the Queen's grants before the
77 Hulme, op. cit. supra note 75, at 49. Sir John Pakington was the
patentee of the first two reissues of this patent. He greatly abused the
privilege in his use thereof.
Council or in the Court of Star Chamber of Exchequer

(infringers had no access to the common law courts) as
the Court might regard infringement of the patent as
evidencing disrespect for the Queen's authority. In the
England of today, of course, the Crown no longer has
authority over the validity of a patent. The Statute of
Monopolies provides that the validity of all monopolies
and patents is to be determined by the common law.79 It
should be pointed out, however, that Elizabeth gave up
her right to determine the validity of her grants in her
own courts in 1601, before the Case of Monopolies and
long before the Statute of Monopolies.
Another difference between Elizabethan patent law and
the present English system exists in the definition of
novelty. Elizabeth desired to introduce those industries
into the realm which would produce manufactures im-
ported theretofore, such as alum, glass, soap, oils, malt,
saltpeter, latten, etc. The petitioner had only to show
that the industry had not been carried on within the realm
within a reasonable period of time. 0 Today, however,
the proof of a single public sale of an article before ap-
plication for a patent can render a subsequent issued
patent invalid. Similarly, a printed publication of the
invention can negate patentability.
An even more striking divergence between Elizabethan
and modern patents is that most of the former gave the
exclusive right of manufacture or importation and not
the right of sale (although patentees could frequently
prevent sales of infringing products). The consumer
could thus purchase the commodity from anyone who
could manufacture it under a different process. What
is even more important, the consumer could buy it from
an importer, since the patentee usually had no monopoly
over importation."' Today a patentee obtains the sole
privilege to vend the invention in addition to the manu-
facturing privilege.
79 21 Jac. I, c. 3, § II; Hulme, The History of the Patent System Under
the Prerogative and at Common Law, 12 L. Q. Rev. 141, at 151.
s9 Hlulme, op. cit. supra, note 79, at 153.
81 Ibid.
Consideration for the Grants

As has been noted, the monopoly privilege was valid
only when some consideration moved to the public. The
consideration was the introduction into the realm of a
new product or process theretofore unknown. Elizabeth
assured receipt of this consideration by requiring:
1. Native apprentices to be taught the art.
2. A disclosure of the secrets of the new art.
3. Working of the invention within a specified time.
4. Small reservations of rent to the Crown.
The latter three requirements were exacted only occa-
sionally, while native apprentices were almost always
forced on the patentee.
The statements or professions of applicants in their
petitions for patents generally formed the basis of the
grants issued. Like Jacobus Acontius, many of them de-
clared that they had expended time and money to dis-
cover industrial secrets which would greatly benefit the
realm and that they had already taken steps to obtain
control of the secret where it originated outside the realm.
The petitioner had to state that the industry had not
theretofore been practiced in the realm and.he was bound
by this allegation. Furthermore, even where no working
clause was present in the grant, the patentee was ex-
pected to introduce the industry and to realize the full
expectations the Crown had been led to believe concern-
ing it, i.e., the industry had to prove sufficiently beneficial
before the patentee had discharged his liabilities. 2
Insth etion of Native Apprentices
Because Elizabeth desired to instruct her subjects in
new industries so imports could be reduced, in most of
her grants she required the patentee to disclose the in-
vention to English apprentices. An example of such a
provision is to be found in the 1561 grant to Philip
Cockeram and John Barnes to make saltpeter for ten
82 1HIu1lme, On the Consideration of the Patent Grant, 13 L. Q. Rev. 313
(1897).
years. Saltpeter had not been produced in England, most

of it having been imported via Antwerp, a port controlled
by the Catholic King of Spain. Elizabeth bargained with
Gerard Honricke, "an almayne Captain," to come over
and teach her subjects the art of making saltpeter as good
as the product from beyond the seas. 3 Saltpeter was
used to make gunpowder and Elizabeth was greatly con-
cerned with the production of military supplies at this
time. 4 It is doubtful if Honricke was required to reduce
the secrets of the process to writing before the bargain
was struck but it was an express condition of the agree-
ment that he was to disclose the process in writing before
he received the promised reward of £300. Honricke was
probably not the inventor of the process. Upon his ar-
rival in England, the Queen assigned the contract to
Cockeram and Barnes, who were London merchants.8 "
The English apprenticeship clause was, of course, to be
found mainly in those patents granted to foreigners, just
in case they left the country at or before the expiration
of the patent term. t
Crown Rents
Elizabeth would frequently reserve a small rent to her-
self in the patent grant. In her 1588 grant to Richard
Young to import, make and sell "le starche" for seven
years an annual rent of £40 was reserved, although it is
said that the real consideration for the grant was the
suppression of the manufacturing of starch from grain,
the patentee being confined to the production of starch
from bran of wheat. Sir John Pakington was granted a
reissue of this patent for eight years in 1594 and again in
1.598. Sir John was typical of those patentees who
abused their privileges at this time. He imprisoned at
least one individual for reselling starch purchased under
the patent and it is possible others suffered similarly.
83 Huirne, op. cit. supra note 79, at 145.
8.5 HIuIhne, op. cit. supra note 79, at 145.
8(; Hulme, op. cit. supra note 82, at 314.
.Sept etber, 1959, Vol. XLI, No. 9
This patent was clearly illegal, particularly after its re-

issue, because the production of starch from wheat bran
was not novel."'
An annual rent of £20 was reserved in the 1594 grant to
Richard Drake for the production of aqua composita,
aqua vitae and vinegar for twenty-one years. Ale was
made from these ingredients and the granting to Drake
of the sole manufacture of the ale excited great public
indignation. There were exaggerated recitals in the grant
and it was grossly abused by the patentee."' The reserva-
tions of rent in these grants were but nominal. The main
consideration for the grants was purportedly the intro-
duction of new industries into the realm.
Written Disclosure of the Invention
Patents for inventions are not granted today unless the

inventor discloses his invention. Such a disclosure com-
prises a written specification of an operable form of the
invention and it is usually printed and published upon the
grant. The stipulation requiring Gerard Honricke to
reduce his process for making saltpeter to writing was
an exception rather than an example of the general pro-
cedure followed by Elizabeth. She did, in fact, institute
a custom which was in direct conflict with the principle
of written disclosure. In the 1565 grant to Jacobus
Acontius for the manufacture of grinding machines there
appears for the first time in grants for inventions a final
clause stating that the patent should be favorably con-
strued at law,
notwithstanding the not full and certain describing the
nature and quality of the said invention,
89 or of the waterials
thereunto conducing and belonging.
This clause was modeled after similar ones in earlier
patents confirming grants of land, etc., to and from the
Crown. It reappeared in Letters Patent for inventions
in 1617 and was thereafter used regularly. Neither speci-
87 Flulme. The History of the Patent System Under the Prerogative and
at Common Law, 16 L. Q. Rev. 44, at 49 (1900).
88 Id. at 50.
8.l Hulme. op. cit. supra note 82, at 313.
fication nor written disclosure was required in the vast

majority of the Elizabethan grants. However, the pat-
entees were obliged to teach the invention to native ap-
prentices and therefore this was not a bone of contention
among the vociferous common law enthusiasts of 1601
and 1623 because the public gained the benefit of the
invention."
An inventor in 1611 suggested the innovation of com-
pletely disclosing the invention as a supplement to the
patent grant. Simon Sturtevant, a manufacturer of tiles,
paper and pressed ware at Highgate, applied for an ex-
elusive right to use certain inventions in the use of coal
for smelting iron and generally for the use of coal as a
fuel in industries in which wood had been used. With his
petition for patent Simon filed a "Treatise of Metallica"
and in this he promised to provide a final and more ex-
plicit statement of his invention, which was to be printed
and published within a fixed period after the grant. He
gave as his reasons for this disclosure that he wished to
show:
1. His invention was new and not stolen.
2. The inventions of other men were not to be pre-
vented by him.
3. No one else had petitioned the king for the same
invention.
4. He was to be bound by the proviso in his grant as
to a further complete disclosure."
Sturtevant's patent issued in 1612 and he submitted the
promised complete disclosure. r1he patent was cancelled
the following year for Sturtevant's failure to work it but
was reissued to one Rovenzon, who published a third
treatise on the subject. It is noteworthy that the idea of
a specification was suggested by an inventor and not by
the Crown. Sturtevant perceived the value of defining
the scope of his invention to protect its validity. Sturte-
vant's provisional and complete specifications were the
90 Ibid.
9' Id. at 316.
first in English history and no others were submitted

until that of Nasmyth a hundred years later 2 Today, of
course, the provisional and complete specifications are an
accepted part of British law.
Working
Under the requirement of working, the patentee had to
put the subject matter of his grant to use or sell the
product thereof within a specified time or the grant would
become void. This obligation was a logical outgrowth of
the monopoly system. A monopoly to one individual
should not be valid unless the public receives some con-
sideration for staying out of the monopolized area. If
the patentee is given the monopoly and then fails to pro-
duce anything from which the public can ultimately gain
some benefit, no consideration passes.
This principle was recognized at an early time. Barto-
lomeo Verde, who received a payment from the Venetian
special privilege fund in 1332 to build a windmill,"3 had to
refund the money at once if he did not complete his instal-
lation and make it work within six months. 4 Even the
letters of protection granted to John Kempe and other
alien artisans were granted on the express condition that
they come to England and practice their trades.
Today a British patent must be worked in the United
Kingdom on a commercial scale and in the fullest possible
measure within three years from the date of sealing. In
the event of non-working or insufficient working any per-
son may, after9 the
5
three years expire, apply for a com-
pulsory license.
92
93
Ibid.
Supra note 14.
94 Prager, A History of Intellectual Property From 1545 to 1787, 26
J, P. 0. S. 711 (1944).
95 Octrooibureau Los En Stigter, Manual for the Handling of Applica-
tions for Patents, Designs and Trade Marks Throughout the World, Great
Britain, pp. 8-9 (2nd ed. 1936). Austria, Canada, Denmark, France and
Sweden have compulsory licensing laws based on mere nonuse by the
patentee. England, Germany have compulsory licensing based on specified
abuses and as to certain classes of goods. Switzerland has both types of
provisions. On compulsory licensing in general see Neumeyer, Compulsory
Licensing of Patents Under Some Non-American Systems: Stud) No. 19
of the Subcommittee on Patents, Trademarks and Copyrights of the Com-
mittee on the Judiciary, United States Senate (1959).
In this country, except in certain instances in which the

antitrust laws are violated, there is no compulsory li-
censing or working. We believe the public receives ade-
quate consideration for the patent grant in the published
specification and drawings, which are dedicated to the
public after the seventeen year term. The continuing
adherence to the old law by the British is probably prim-
arily caused by a reluctance to change rather than by a
real need for such working. Even though inventors are
not required to make use or sell their inventions in this
country, there has been no evidence of deliberate re-
straint of beneficial inventions from the public upon the
patenting thereof. Great Britain and the other countries
having compulsory working laws could probably do quite
well without them.
VII. SEQUEL
The English patent system was not the outgrowth of

abuse of Elizabeth's monopolies. Once she accepted the
policy of Acontius, Elizabeth created the basis of our
patent law. What followed was merely inevitable growth
and definition of the scope of the basic principles. Neither
the Case of Monopolies nor the Statute of Monopolies
constitutes the foundation of the English patent system.
These were only effects, not causes. 6
It was Elizabeth who first foresaw the value of re-
warding inventors. Had she limited her grants to new
inventions, the Case of Monopolies and the Statute of
Monopolies might never have been a part of history. Un-
fortunately, however, the Crown's treasuries were low
and too frequently Elizabeth granted patents for purely
mercenary reasons, attempting to obtain either a cash
payment or a share of the profits from a grant. The
grantees often knew little of the particular art and the
monopoly system became a system of plunder. The gen-
eral pubhic began to suffer and then outcries were heard
in the Parliament.9"
96 Fox. op. cit. supra note 74, at 81.
fT Id. at 70.
Elizabeth was aware of the approaching shackles her

power of prerogative was to bear. In the first ten years
of her patent grants twenty-three original grants were
made. Only twenty-six grants were made in the next
twenty years and there were only six grants in the years
1951 to 1600. In the last three years of her reign no
original grants were made." As the murmurings in-
creased, her grants decreased, but the damage had al-
ready been done and the stage was set for confinement of
the monopoly grant to new inventions only. Elizabeth's
timidity in making grants at the end of her reign might
even have added fuel to the fire of indignation. Among
the noteworthy inventions refused patents at this time
were Stanley's invention of armor plate, Gainibelli's
method of land reclamation, Harrington's water closet,
which then had to wait one hundred and fifty years before
its introduction and use, and the stocking frame of Lee, "9
which was refused a patent because of the injury it might
have done to the hand knitters.10 0 Lee subsequently took
his stocking frame to France, where it was accepted and
patented."'
The first public denunciation of monopolies in Parlia-
ment. came in 1571 when a member named Bell severely
criticized monopoly licenses and their abuse. He was
reprimanded before the Privy Council and the Queen
advised the House "to spend little time in Motions, and
to avoid long Speeches." In 1597 the subject was again
brought up in Parliament and again the Queen rebuked
them. 102
In 1599 the Merchant Tailors' Case 103 was heard in
the Court of the King's Bench. An ordinance of the
London Company of Merchant Tailors required every
brother of the Company to give at least half of his cloth
to be dressed to some other brother of the.society, under
98 Hulme, op. cit. supra note 87, at 52.
100 Gomme, op. cit. supra note 12. at 24b.
102 Id. at 74-5.
103 Davenant v. Hurdis, 72 Eng. Rep. 769 (Moore 567), 11 Coke Rep. 86
(King's Bench 1599).
pain of forfeiture of 10 shillings for failure to do so.

The Court held the ordinance void since it was a mo-
nopoly. The view of the common law was that monopo-
lies were void unless for the common good.
In 1601 a declaratory bill was introduced in Parliament
which was designed to eliminate the monopoly abuses
and restore freedom of trade. After several days of
heated debate the Queen sent a message to the House
through the Speaker to the effect that some of the more
abusive monopolies would be repealed and that none
would be executed until they were tried according to the
law for the good of the people. Three days later Eliza-
beth issued a proclamation declaring a number of :no-
nopolies to be void aid providing that thereafter graits
of patents could be tested by a subject under the laws of
the realm, notwithstanding anything in a grant to the
10 4
contrary.
In 1598 Edward Darcy, a Groom of the Queen's Privy
Chamber, had been granted a twenty-one year license
for making and importing playing cards. 1 05 -
As late as
1603 actions against Darcy were prohibited "0"but in the
Easter Term, 1602, Darcy made the disastrous mistake
of bringing an action himself against an infringer 107
and the common law courts were afforded an opportunity
they might not have had for some time. In holding for
the defendant and declaring Lord Darcy's grant void,
the court pointed out that Darcy had no skill in making
cards and those subjects who had engaged in this trade
before the grant were greatly damaged by it. It was
definitely against the common law.'0 8 This is the widely
discussed Case of Monopolies. It was the first complete
judicial enunciation of the common law principles con-
cerning monopolies. It added, however, nothing to the
common law of monopolies because patents of this type
had never been recognized as valid.
104 Fox, op. cit. supra note 74, at 75-8.
105 lulme, op. cit. supra note 87, at 51.
107 Davies, op. cit. supra note 55, at 405.
108 The Case of Monopolies, Darcy v. Allen, 72 Eng. Rep. 830 (Moore
671), 74 Eng. Rep. 1131 (Noy 173), 11Coke Rep. 86, 1 Abbott's Patent
Cases I (King's Bench 1602).
In 1603 James I acceded to the English throne and in

1605 the Case of Penal Statutes '09 was decided. In this
case the Judges of England said that grants of power to
dispense with trade penal laws, such as those prohibiting
certain types of exports, were void. Those grants which
afforded grantees the right to break the law by issuing
dispensations from penal laws upon receiving fees were
also void. This case was only one more step in the limi-
tation of the Crown's prerogative. These grants had
always been in conflict with the laws of Parliament.
In 1607 the Case of Stannaries110 and the Case of
King's Prerogative in Saltpeter "I were decided. In the
former case the Star Chamber held that the King's pre-
emption of tin in Cornwall, which James had given to
Gilbert Brochouse for twenty-one years, was the King's
to give, not by his prerogative but as his own property,
being ancient rent and inheritance due the King. In the
Saltpeter case Parliament decided the King could grant
licenses to certain men to dig for saltpeter on other
men's lands because saltpeter was necessary for the
production of gunpowder and this was needed for the
defense of the realm. Parliament pointed out, however,
that the licensees could not prevent a man from digging
for saltpeter on his own land. These cases further de-
fined the power of the Crown. The prerogative was be-
coming outlined in detail.
James I, unlike Elizabeth, tried to keep the assertion
of his prerogative within the common law, at least at the
beginning of his reign. In 1603 he issued a proclamation
against monopolies and in 1623 he formed a commission
to hear complaints against monopolies. His most famous
proclamation was his Book of Bounty of 1610. in which
he declared that monopolies were against the laws of the
realm and expressly commanded that no suitor should
presume to move the King to grant them. Language in
the Book was referred to later in the Statute of Monopo-
lies. In 1621 James issued a proclamation revoking cer-
1097 Coke Rep. 36 (1605).
"0 12 Coke Rep. 9 (Star Chamber 1607).
Ill 12 Coke Rep. 12 (Parliament 1607).
tain monopolies, but many were still existent and wide-

spread abuse was common."
In 1615 the ease of the Clothworkers of lpswich "I was
decided in the Court of the King's Bench. Much of the
language in the opinion is modeled after that in the Book
of Bounty. The Court held an ordinance unlawful which
prohibited anyone from being a cloth worker or tailor
in the town of Ipswich before he had served an appren-
ticeship. The Court held that the King could create
corporations and give them power to make ordinances
governing trade, but they could not thereby monopolize
trade in any manner. The Crown's prerogative was thus
further defined and limited. The Court spoke favorably
of patents for invention, although the case had nothing
to do with these:
But if a man hath brought in a new invention and a new trade
within the kingdom, in peril of his life, and consumption of his
estate or stock, &c. or if a man hath made a new discovery of
any thing, in such cases the King of his grace and favour, in
recompense of his costs and travail, may grant by charter unto
him, that he only shall use such a trade or trafique for a certain
time, because at first the people of the kingdom are ignorant,
and have not the knowledge or skill to use it: but when that
patent is expired, the King cannot make a new grant thereof:
for when the trade is become common, alid others have been
found apprentices in the same trade, there is no reason that
such should be forbidden to use it.1
In the spring of 1619 matters came to a crisis. Five
silk mercers had been imprisoned by a patentee and there
was great public indignation. James released the men
but proclaimed a continuance of the monopoly system. 1
The following year a great debate was waged in Parlia-
ment over a patent for inns and by 1621 complaints about
monopolies were extremely widespread."
112 II Coke Rep. 88d. Fox, op. cit. supra note 74, at 116, 336-7. In 1639
James proclaimed other monopolies void. Fox, at 343.
11: 78 ng. Rep. 147 (King's Bench 1615).
.11478 Eng. Rep. at 148.
115 Thornpson. Magna Carta-Its Role in the Making of the English
Constitution-1300-1629, p. 301 (1943).
116 Fox, op. cit. supra note 74, at 97-8, 102.
On March 27, 1621, James suggested that the House

draw up a proclamation against the three most objection-
able patents and he "would give Life to it, without
alteration. "I The day before this, however, an act re-
specting monopolies was reported out of committee to
the House and was ultimately passed on May 12th and
sent to the Lords. The bill was thrown out by the Lords
and James dissolved Parliament in February of 1622.118
Agitation in Parliament continued and on May 25,
1624, the Statute of Monopolies "' was passed. This act
added little to the patent law but was a clear declaration
of what the common law was in this area. The only real
change the act made was to limit the term of patents to
fourteen years. Another important portion of the act
declared that patents were to be tested by the common
law in the common law courts. Elizabeth, however, had
already made this change twenty-three years ago. The
Statute of Monopolies is not unimportant and many of
its provisions are in effect today.12 ' However, it was
certainly not the final word on this subject. Monopoly
abuses continued and as late as 1641 the Court of the
King's Bench still had to define a valid patent. 12' And
it was, of course, not until two hundred years had passed
that the system of granting patents lost its clumsiness
sufficient to enable inventors 12to obtain patents without
long, drawn out prosecutions. 1
117 d. at 105.
I1s Id. at 10-7.
11921 Jac. 1, c. 3.
120 Sir Edward Coke was very active in this area of the law at this time.
He argued that monopolies had always been illegal in England under the
Magna Carta of 1217. McKechnie, Magna Carta-A Commentary on the
Great Charter of King John 384 (1914). Coke's definition of a monopoly,
however, did not include a patent for an invention. 3 Coke, Institutes 181
(1648). Most writers feel that, although the Statute of Monopolies was
passed in 1624, the law which it declared came from Elizabeth. Jarratt,
English Patent System, 26 J. P. 0. S. 761 (1944); Vojacek, Back to Queen
Elizabeth, 32 J. P. 0. S. 629 (1950).
121 Edgeberry v. Stephens, 90 Eng. Rep. 1162 (Holt 475) (King's Bench
1691).
122 Gomme, Patent Practice in the Eighteenth Century, 19 J. P. 0. S. 256
(1937).
VIfI. CONCLUSION
The English patent system owes much of its existence
to the reign of Elizabeth. The history that preceded and
followed her reign greatly contributed to the develop-
ment of English patent law but it was Elizabeth who first
recognized the great value of rewarding inventors and
it was not until her reign that inventors were rewarded
with patents regularly as a matter of course.
It is not intended- to detract from the importance of the
Case of Monopolies and the Statute of -i\onopolies but
these were only inevitable results following the move-
ment Elizabeth had begun. Once the idea of granting
monopolies was accepted by the people and the Crown,
it remained only for Parliament and the courts to chan-
nel this principle into the proper conduit. Overzealous
to please her favorites, Elizabeth extended the theory
of Acontius far beyond its reasonable bounds. Finding
that her subjects would not tolerate this, she gradually
withdrew her policies back within the limits of the com-
mon law, which limits had existed long before her reign.
Little did honest Jacobus Acontius realize what he was
starting but thousands of inventors have since been in-
debted to him and to Elizabeth for their experimental
steps 400 years ago. And, while our patent law may
little resemble Elizabeth's, the foundations on which she
built remain and are put to good use today.

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Historical Background of the English

The English were not the first to grant patents to in-

In England it is the "sole privilege" to "make, use, exer-

II. EARLY MONOPOLIES OUTSIDE OF ENGLAND

The First Monopolies

Abbot by Count William of Mortagne, authorizing him to

to persons claiming knowledge of millwork and ship de-

Other countries also granted a few patents about this

jon, a printer, who designed "Caractare de civilit6" type,

manufacturing. These were group monopolies and were

These guilds had monopolistic powers which were fre-

The Letters of Protection

. in order to encourage people to work upon cloths, the king

was the beginning of a deliberate and vigorous policy to

A monopoly right, as opposed to a mere privilege,

invitation to a foreigner to come to England, similar to

The earlier grants were either for the introduction of

The English patent law made greater advances in the

The Beginning of the Regular Grants

any of theym so to be made and as they and eny of theym

class outside of the old merchant and craft guilds.

before her combined. The subject matter of the Eliza-

their competitors. 4 The most flagrant misuse of Eliza-

The petition of Acontius must be noted as one of the

monopoly licenses granted during the years 1561 to 1600.

Analysis of Elizabeth's Grants

In a fourth category are found the grants to an in-

Council or in the Court of Star Chamber of Exchequer

Consideration for the Grants

years. Saltpeter had not been produced in England, most

This patent was clearly illegal, particularly after its re-

Patents for inventions are not granted today unless the

fication nor written disclosure was required in the vast

first in English history and no others were submitted

In this country, except in certain instances in which the

The English patent system was not the outgrowth of

Elizabeth was aware of the approaching shackles her

pain of forfeiture of 10 shillings for failure to do so.

In 1603 James I acceded to the English throne and in

tain monopolies, but many were still existent and wide-

On March 27, 1621, James suggested that the House

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