the English system and reveals a sophisticated knowledge of the English patent law and
practice.
This is reflected in Senate committee report
for the bill that became the
1790 Act, which expressly noted the drafters’ reliance on the English practice:
The Bill depending before the House of Representatives for the Promotion
of useful Arts is framed according to the Course of Practice in the English
Patent Office except in two Instances—
22 J. Pat. Off. Soc’y at 363 (emphasis added).
Likewise, the legislative history of the
1793 Patent Act reflects the same keen understanding of English patent practice.
During a debate in the House over the creation of a Patent Office, for example, the
4
Edward C. Walterscheid, To Promote the Progress of Useful Arts:
American Patent Law & Administration, 1798-1836 109 (1998) (hereinafter To Promote
the Progress); see also Edward C. Walterscheid, The Early Evolution of the United
States Patent Law: Antecedents (Part 1), 76 J. Pat. & Trademark Off. Soc’y 697, 698
(1994) (“[T]he English common law relating to patents was what was best known in the
infant United States.”).
5
Senate Committee Report Accompanying Proposed Amendments to H.R.
41, reprinted in Proceedings in Congress During the Years 1789 & 1790 Relating to the
First Patent & Copyright Laws, 22 J. Pat. Off. Soc’y 352, 363 (1940).
6
Neither of those two instances related to patentable subject matter or was
adopted in the enacted statute. The first proposed departure from the English practice
was a novelty provision protecting the inventor against those who derived their
knowledge of the invention from the true inventor; the second was in a requirement that
patentees make a “Public Advertisement” of their invention. Such a requirement was
thought necessary “in so extensive a Country as the United States.” Senate Report,
reprinted in 22 J. Pat. Off. Soc’y at 363-64.
The American statute ultimately differed in some other respects. For example,
Congress rejected the English rule that the invention need only be novel in England.
The American statute required novelty against the whole world and did not permit
“patents of importation.” See To Promote the Progress, supra n.4 at 95-97, 137-38.
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