Statute of Monopolies 1623
Encyclopedia
The Statute of Monopolies was an Act
of the Parliament of England
notable as the first statutory expression of English patent law. Patents evolved from letters patent
, issued by the monarch to grant monopolies over particular industries to skilled individuals with new techniques. Originally intended to strengthen England's economy by making it self-sufficient and promoting new industries, the system gradually became seen as a way to raise money (through charging patent-holders) without having to incur the public unpopularity of a tax. Elizabeth I
particularly was a great abuser of the system, issuing patents for common commodities such as starch and salt. Unrest eventually persuaded her to turn the administration of patents over to the common law
courts, but her successor, James I
, was even more abusive. Despite a committee established to investigate grievances and excesses, Parliament made several efforts to further curtail the monarch's power. The result was the Statute of Monopolies, passed on 25 May 1624.
The statute repealed all past and future patents and monopolies, except those created in the future over completely novel inventions. Seen as a key moment in the evolution of patent law, the statute has also been described as "one of the landmarks in the transition of [England's] economy from the feudal to the capitalist". Even with the statute in force, it took over a century for a comprehensive legal doctrine around patents to come into existence, and James I's successor Charles I
regularly abused the patents system by ensuring that all cases relating to his actions were heard in conciliar courts, which he controlled. The English Civil War
and the resulting English Restoration
finally curtailed this system of abuse. The statute is still the basis for Australian law, and until the United Kingdom began following the European Patent Convention
in 1977, was also a strong pillar of the United Kingdom's intellectual property law.
, not on statute. It began as the Crown
granted patents as a form of economic protection to ensure high industrial production. As gifts from the crown, there was no judicial review, oversight or consideration, and no actual law developed around patents. This practice came from the guilds, groups who were controlled by the Crown and held monopolies over particular industries. By the 14th century the economy of England was lagging behind that of other European nations, with the guilds too small to control industrial production successfully. To remedy this, Edward II
began encouraging foreign workmen and inventors to settle in England, offering "letters of protection" that protected them from guild policy on the condition that they train English apprentices and pass on their knowledge. The first recorded letter of protection was given in 1331. The letters did not grant a full monopoly; rather they acted as an extended passport, allowing foreign workers to travel to England and practice their trade. An exceptional example (considered the first full patent in England) was issued to John of Utynam
on 3 April 1449, granting him a monopoly. Overseas, the practice of granting full industrial patents and monopolies became common in Italian states by the 1420s.
Over the next century, the granting of full industrial patents became a more common practice in England; the next record is a letter from 1537 to Thomas Cromwell
, Henry VIII
's private secretary, from Antonio Guidotti, a Venetian silk-merchant. Guidotti had persuaded a group of Venetian silk-makers to practice in England, and wanted the king to grant him letters patent
protecting their monopoly to grow silk for 15 or 20 years. This was granted, and Henry's son Edward VI
followed up with a grant of letters patent to Henry Smyth, who hoped to introduce foreign glassworking techniques into England. This process continued after Elizabeth I
came to the throne, with formal procedures set out in 1561 to issue letters patent to any new industry, allowing monopolies. The granting of these patents was highly popular with the monarch, both before and after the statute of Monopolies, because of the potential for raising revenue. A patentee was expected to pay heavily for the patent, and unlike a tax raise (another method of raising Crown money) any public unrest as a result of the patent was normally directed at the patentee, not the monarch.
Over time, this became more and more problematic; instead of temporary monopolies on specific, imported industries, long-term monopolies came about over more common commodities, including salt and starch. These "odious monopolies" led to a showdown between the Crown and Parliament, in which it was agreed in 1601 to turn the power to administer patents over to the common law courts; at the same time, Elizabeth revoked a number of the more restrictive and damaging monopolies. Even given a string of judicial decisions criticising and overruling such monopolies, James I
, Elizabeth I's successor, continued using patents to create monopolies. Despite the Committee of Grievances, a body chaired by Sir Edward Coke
that abolished a large number of monopolies, a wave of protest occurred at the expansion of the system. On 27 March 1621, James suggested the House of Commons draw up a list of the three most objectionable patents, and he would "give Life to it, without alteration", but by this time a statute was already being prepared by Coke. After passing on 12 May it was thrown out by the House of Lords
, but a statute of Monopolies was finally passed by Parliament on 25 May 1624.
, Court of Common Pleas
or other criminal courts to order someone's imprisonment. Section 9 provided that the rejection of letters patent and licenses did not extend to corporations over towns, such as the City of London Corporation.
The statute is worded "strongly and broadly", and other than the exceptions mainly repeated the existing common law. The statute has long been considered a key moment in patent law; Chris Dent, writing in the Melbourne University Law Review, identifies it as "a significant marker in the history of patents" with continuing importance, although it is neither the start nor end of patent law. Despite the statute, the courts did not develop a comprehensive and coherent legal doctrine for patent law for more than a century after the statute came into force. Not only is it highly important within patent law, it also played a large role in economics; G. A. Bloxam, writing in the Journal of Industrial Economics, identifies the passage of the Statute of Monopolies as "one of the landmarks in the transition of [England's] economy from the feudal to the capitalist".
As well as being significant in relation to patent law, Whig historians
have also identified it as the first infringement upon the monarch's Royal Prerogative, and one of the first occasions in which the self-confident House of Commons overruled the king, eventually leading to the English Civil War
. Chris R. Kyle, writing in the Journal of Legal History, notes that this is not the case; not only did the Statute of Monopolies only restate the previous common law, leading to no infringement upon the Royal Prerogative, James I was in the later stages of the bill supportive of its principles. James I was not opposed to the motion; during the 1621 session of Parliament, he voided several monopolies (included those for silver thread and inns), and both James and the Privy Council
were active during the passage of the bill to ensure it was supported.
The statute required extensive judicial action to make it work, particularly on the interpretation of Section 6. Sir Edward Coke, in his Institutes of the Lawes of England
, wrote that The subject was also discussed in Bircot's Case, where it was decided that an inventive improvement to an existing industry or invention was not a new "material", and could not be patented; such an improvement was described as "to put but a new button to an old coat". Hasting's Case confirmed that a patent would not be issued, even for a new "material", that was extremely close to an old one, something originally laid down in Matthey's Case. The statute did not stop the monarch issuing such patents in return for money; after James I's death, Charles I
continued issuing them and avoided having to obey the law by having any cases heard in the conciliar courts, such as the Star Chamber
. In response to this abuse and others, the Star Chamber was abolished by the Habeas Corpus Act 1640
. After the English Restoration
, these activities largely ceased because of the dominant power of Parliament and the Bill of Rights 1689
, which completely abolished the king's ability to disobey or alter statute.
The Statute of Monopolies dominated patent law for centuries; the patent law of Australia is dominated by the Patents Act 1990, which states that one test for if something is patentable is if it is in "a manner of manufacture within the meaning of section 6 of the Statute of Monopolies". In England and Wales, some sections of the statute are still technically in force, although the Statute Law Revision Act 1863, Patents, Designs and Trade Marks Act 1883, Statute Law Revision Act 1948
, Administration of Justice Act 1965 and Statute Law (Repeals) Act 1969 repealed most of the legislation. In practice however, with the Patents Act 1977 (which brought the United Kingdom into line with the European Patent Convention
), the statute has been implicitly repealed
.
Acts of Parliament in the United Kingdom
An Act of Parliament in the United Kingdom is a type of legislation called primary legislation. These Acts are passed by the Parliament of the United Kingdom at Westminster, or by the Scottish Parliament at Edinburgh....
of the Parliament of England
Parliament of England
The Parliament of England was the legislature of the Kingdom of England. In 1066, William of Normandy introduced a feudal system, by which he sought the advice of a council of tenants-in-chief and ecclesiastics before making laws...
notable as the first statutory expression of English patent law. Patents evolved from letters patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
, issued by the monarch to grant monopolies over particular industries to skilled individuals with new techniques. Originally intended to strengthen England's economy by making it self-sufficient and promoting new industries, the system gradually became seen as a way to raise money (through charging patent-holders) without having to incur the public unpopularity of a tax. Elizabeth I
Elizabeth I of England
Elizabeth I was queen regnant of England and Ireland from 17 November 1558 until her death. Sometimes called The Virgin Queen, Gloriana, or Good Queen Bess, Elizabeth was the fifth and last monarch of the Tudor dynasty...
particularly was a great abuser of the system, issuing patents for common commodities such as starch and salt. Unrest eventually persuaded her to turn the administration of patents over to the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
courts, but her successor, James I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
, was even more abusive. Despite a committee established to investigate grievances and excesses, Parliament made several efforts to further curtail the monarch's power. The result was the Statute of Monopolies, passed on 25 May 1624.
The statute repealed all past and future patents and monopolies, except those created in the future over completely novel inventions. Seen as a key moment in the evolution of patent law, the statute has also been described as "one of the landmarks in the transition of [England's] economy from the feudal to the capitalist". Even with the statute in force, it took over a century for a comprehensive legal doctrine around patents to come into existence, and James I's successor Charles I
Charles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
regularly abused the patents system by ensuring that all cases relating to his actions were heard in conciliar courts, which he controlled. The English Civil War
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
and the resulting English Restoration
English Restoration
The Restoration of the English monarchy began in 1660 when the English, Scottish and Irish monarchies were all restored under Charles II after the Interregnum that followed the Wars of the Three Kingdoms...
finally curtailed this system of abuse. The statute is still the basis for Australian law, and until the United Kingdom began following the European Patent Convention
European Patent Convention
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
in 1977, was also a strong pillar of the United Kingdom's intellectual property law.
Background
Historically, English patent law was based on custom and the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, not on statute. It began as the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
granted patents as a form of economic protection to ensure high industrial production. As gifts from the crown, there was no judicial review, oversight or consideration, and no actual law developed around patents. This practice came from the guilds, groups who were controlled by the Crown and held monopolies over particular industries. By the 14th century the economy of England was lagging behind that of other European nations, with the guilds too small to control industrial production successfully. To remedy this, Edward II
Edward II of England
Edward II , called Edward of Caernarfon, was King of England from 1307 until he was deposed by his wife Isabella in January 1327. He was the sixth Plantagenet king, in a line that began with the reign of Henry II...
began encouraging foreign workmen and inventors to settle in England, offering "letters of protection" that protected them from guild policy on the condition that they train English apprentices and pass on their knowledge. The first recorded letter of protection was given in 1331. The letters did not grant a full monopoly; rather they acted as an extended passport, allowing foreign workers to travel to England and practice their trade. An exceptional example (considered the first full patent in England) was issued to John of Utynam
John of Utynam
John of Utynam is the recipient of the first known English patent.-Background:John was a master glass-maker from Flanders. He came to England to make the windows for Eton College.-Patent:The patent was granted in 1449 by King Henry VI of England...
on 3 April 1449, granting him a monopoly. Overseas, the practice of granting full industrial patents and monopolies became common in Italian states by the 1420s.
Over the next century, the granting of full industrial patents became a more common practice in England; the next record is a letter from 1537 to Thomas Cromwell
Thomas Cromwell, 1st Earl of Essex
Thomas Cromwell, 1st Earl of Essex, , was an English statesman who served as chief minister of King Henry VIII of England from 1532 to 1540....
, Henry VIII
Henry VIII of England
Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
's private secretary, from Antonio Guidotti, a Venetian silk-merchant. Guidotti had persuaded a group of Venetian silk-makers to practice in England, and wanted the king to grant him letters patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
protecting their monopoly to grow silk for 15 or 20 years. This was granted, and Henry's son Edward VI
Edward VI of England
Edward VI was the King of England and Ireland from 28 January 1547 until his death. He was crowned on 20 February at the age of nine. The son of Henry VIII and Jane Seymour, Edward was the third monarch of the Tudor dynasty and England's first monarch who was raised as a Protestant...
followed up with a grant of letters patent to Henry Smyth, who hoped to introduce foreign glassworking techniques into England. This process continued after Elizabeth I
Elizabeth I of England
Elizabeth I was queen regnant of England and Ireland from 17 November 1558 until her death. Sometimes called The Virgin Queen, Gloriana, or Good Queen Bess, Elizabeth was the fifth and last monarch of the Tudor dynasty...
came to the throne, with formal procedures set out in 1561 to issue letters patent to any new industry, allowing monopolies. The granting of these patents was highly popular with the monarch, both before and after the statute of Monopolies, because of the potential for raising revenue. A patentee was expected to pay heavily for the patent, and unlike a tax raise (another method of raising Crown money) any public unrest as a result of the patent was normally directed at the patentee, not the monarch.
Over time, this became more and more problematic; instead of temporary monopolies on specific, imported industries, long-term monopolies came about over more common commodities, including salt and starch. These "odious monopolies" led to a showdown between the Crown and Parliament, in which it was agreed in 1601 to turn the power to administer patents over to the common law courts; at the same time, Elizabeth revoked a number of the more restrictive and damaging monopolies. Even given a string of judicial decisions criticising and overruling such monopolies, James I
James I of England
James VI and I was King of Scots as James VI from 24 July 1567 and King of England and Ireland as James I from the union of the English and Scottish crowns on 24 March 1603...
, Elizabeth I's successor, continued using patents to create monopolies. Despite the Committee of Grievances, a body chaired by Sir Edward Coke
Edward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
that abolished a large number of monopolies, a wave of protest occurred at the expansion of the system. On 27 March 1621, James suggested the House of Commons draw up a list of the three most objectionable patents, and he would "give Life to it, without alteration", but by this time a statute was already being prepared by Coke. After passing on 12 May it was thrown out by the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, but a statute of Monopolies was finally passed by Parliament on 25 May 1624.
Sections 1–5
Section 1 said that: Crucially, this rendered all past, present and future patents and monopolies null and void. Patents were normally divided into three categories; patents for a particular invention, patents exempting a patent-holder from legislation, and patents for a particular trade or industry. Section 1, however, for the first time discussed a new category of patents; those "of Power, Liberty or Faculty". These patents were normally used in relation to penal laws, to "farm out" the business of administering to criminals and dispensing justice to private companies and individuals. The statute, in a break from previous law, emphasised that this power lay only within Parliament. Section 2 provided that all future patents granted should be determined by the common law, and not otherwise, while Section 3 emphasised that companies and individuals now or in the future in possession of patents should not be allowed to exercise them. Sections 4 and 5 provided that if anyone was interfered with 40 days after the Statute of Monopolies was passed due to a patent or monopoly, any goods seized or persons imprisoned would be returned to their owners and released respectively.Sections 6–9
The most important part of the statute is Section 6, which lays out out the exceptions to the rules preventing any kind of monopoly or patent. It stated that the previous provisions: Essentially, this established a wide area in which patents could be granted, on the condition that monopolies lasted no longer than 14 years. These patents would apply to any new "manner" of "manufacture", with "manufacture" referring both to the creation of an object, and the design for that object. Section 7 provided that the Act did not prejudice or overrule any previous statutory measures, while Section 8 provided that the restoration to Parliament of the power to administer penal law did not in any way infringe upon the right of the king, Court of King's BenchCourt of King's Bench (England)
The Court of King's Bench , formally known as The Court of the King Before the King Himself, was an English court of common law in the English legal system...
, Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
or other criminal courts to order someone's imprisonment. Section 9 provided that the rejection of letters patent and licenses did not extend to corporations over towns, such as the City of London Corporation.
Significance
As well as being significant in relation to patent law, Whig historians
Whig history
Whig history is the approach to historiography which presents the past as an inevitable progression towards ever greater liberty and enlightenment, culminating in modern forms of liberal democracy and constitutional monarchy. In general, Whig historians stress the rise of constitutional government,...
have also identified it as the first infringement upon the monarch's Royal Prerogative, and one of the first occasions in which the self-confident House of Commons overruled the king, eventually leading to the English Civil War
English Civil War
The English Civil War was a series of armed conflicts and political machinations between Parliamentarians and Royalists...
. Chris R. Kyle, writing in the Journal of Legal History, notes that this is not the case; not only did the Statute of Monopolies only restate the previous common law, leading to no infringement upon the Royal Prerogative, James I was in the later stages of the bill supportive of its principles. James I was not opposed to the motion; during the 1621 session of Parliament, he voided several monopolies (included those for silver thread and inns), and both James and the Privy Council
Privy Council of the United Kingdom
Her Majesty's Most Honourable Privy Council, usually known simply as the Privy Council, is a formal body of advisers to the Sovereign in the United Kingdom...
were active during the passage of the bill to ensure it was supported.
The statute required extensive judicial action to make it work, particularly on the interpretation of Section 6. Sir Edward Coke, in his Institutes of the Lawes of England
Institutes of the Lawes of England
The Institutes of the Lawes of England are a series of legal treatises written by Sir Edward Coke. They were first published, in stages, between 1628 and 1644. They are widely recognized as a foundational document of the common law. They have been cited in over 70 cases decided by the Supreme Court...
, wrote that The subject was also discussed in Bircot's Case, where it was decided that an inventive improvement to an existing industry or invention was not a new "material", and could not be patented; such an improvement was described as "to put but a new button to an old coat". Hasting's Case confirmed that a patent would not be issued, even for a new "material", that was extremely close to an old one, something originally laid down in Matthey's Case. The statute did not stop the monarch issuing such patents in return for money; after James I's death, Charles I
Charles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
continued issuing them and avoided having to obey the law by having any cases heard in the conciliar courts, such as the Star Chamber
Star Chamber
The Star Chamber was an English court of law that sat at the royal Palace of Westminster until 1641. It was made up of Privy Counsellors, as well as common-law judges and supplemented the activities of the common-law and equity courts in both civil and criminal matters...
. In response to this abuse and others, the Star Chamber was abolished by the Habeas Corpus Act 1640
Habeas Corpus Act 1640
The Habeas Corpus Act 1640 is an Act of the Parliament of England with the long title "An Act for the Regulating the Privie Councell and for taking away the Court commonly called the Star Chamber." The Act was passed by the Long Parliament shortly after the impeachment and execution of Thomas...
. After the English Restoration
English Restoration
The Restoration of the English monarchy began in 1660 when the English, Scottish and Irish monarchies were all restored under Charles II after the Interregnum that followed the Wars of the Three Kingdoms...
, these activities largely ceased because of the dominant power of Parliament and the Bill of Rights 1689
Bill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
, which completely abolished the king's ability to disobey or alter statute.
The Statute of Monopolies dominated patent law for centuries; the patent law of Australia is dominated by the Patents Act 1990, which states that one test for if something is patentable is if it is in "a manner of manufacture within the meaning of section 6 of the Statute of Monopolies". In England and Wales, some sections of the statute are still technically in force, although the Statute Law Revision Act 1863, Patents, Designs and Trade Marks Act 1883, Statute Law Revision Act 1948
Statute Law Revision Act 1948
The Statute Law Revision Act 1948 is an Act of the Parliament of the United Kingdom.Section 5 and Schedule 2 authorised the citation of 158 earlier Acts by short titles....
, Administration of Justice Act 1965 and Statute Law (Repeals) Act 1969 repealed most of the legislation. In practice however, with the Patents Act 1977 (which brought the United Kingdom into line with the European Patent Convention
European Patent Convention
The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention , is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted...
), the statute has been implicitly repealed
Implied repeal
The doctrine of implied repeal is a concept in English constitutional theory which states that where an Act of Parliament conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act are repealed...
.
See also
- Statute of AnneStatute of AnneThe Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...
- Intellectual propertyIntellectual propertyIntellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
- PatentPatentA patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....