The history of patents begins, not with inventions, but with royal grants of industrial monopolies in the fifteenth century. By the end of the eighteenth century, however, patents represent a legal right to property in a novel mechanical or scientific invention. Commentators today maintain that this radical shift from royal monopoly privilege to legal property right occurred solely in response to economic or institutional demands. While political, economic and institutional conditions certainly played a role in this story, this Article maintains that the ideas of John Locke were the true fountainhead behind the evolution of patents.
Although there were fits and starts toward a new patent doctrine in the seventeenth century, the watershed moment occurred when the common law courts acquired jurisdiction over patents from the Privy Council in the mid-eighteenth century. The common law judgeslearned men steeped in the traditional rights of Englishmen and the philosophy of natural rights-redefined the doctrine of patents by drawing upon the ideas that formed the basis of their own political and legal philosophy. The result was the novelty and the specification requirements, which are first described by Lord Mansfield and Justice Buller in terms that reflect John Locke's labor theory of property and social contract theory. In surveying the historical record, i.e., in looking at the ways in which royal councilors, judges and inventors conceived of patents between 1550 and 1800, the influence of Locke's ideas upon this important legal doctrine is evident. This provenance of patent law thus suggests that an inventor's moral right to the property in one's invention should play a role in the ongoing debate concerning the protections afforded by the patent laws.
Rethinking the Development of Patents: An Intellectual History, 1550-1800,
52 Hastings L.J. 1255
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