England. Both also required inventors to file a written specification—a requirement
recognized by the English common law courts in the mid-eighteenth century.
In
addition, as discussed below, the categories of patentable subject matter closely
tracked the English approach, and in certain respects reflected a deliberate choice
between competing views prevalent in England at the time.
B
The English practice in 1793, imported into the American statutes, explicitly
recognized a limit on patentable subject matter. As the Supreme Court recounted in
Graham v. John Deere, the English concern about limiting the allowable scope of
patents arose from an aversion to the odious Crown practice of granting patents on
particular types of businesses to court favorites. 383 U.S. 1, 5 (1966); see also
powers in established industries, as a form of patronage, to courtiers whom the crown
could not otherwise afford to reward.”). Parliament responded to the Crown’s abuses in
1623 by passing the Statute of Monopolies, prohibiting the Crown from granting these
despised industry-type monopolies. Not all monopolies were prohibited, however: the
Statute expressly exempted invention-type patent monopolies. Section 6 of the Statute
exempted from its prohibitions “letters patent and grants of privilege for the term of
fourteen years or under, hereafter to be made, of the sole working or making of any
manner of new manufactures within this realm, to the true and first inventor and
inventors of such manufactures . . . .” 21 Jac. 1. c.3, s.6 (emphases added).
8
See Christine MacLeod, Inventing the Industrial Revolution: The English
Patent System, 1660-1800 48-49 (2002); To Promote the Progress, supra n.4 at 400,
404.
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