British practice which differed from that enacted in the United States, particularly the
aspect whereby a British patent could be granted to a person who imported something
that was new to England, whether or not the import was previously known or the
importer was the inventor thereof. In England, “[t]he rights of the inventor are derived
from those of the importer, and not vice versa as is commonly supposed.” Hulme, The
History of the Patent System Under the Prerogative and at Common Law, 12 L.Q.R. at
152; see also MacLeod, Inventing the Industrial Revolution 13 (“The rights of the first
inventor were understood to derive from those of the first importer of the invention.”).
In contrast, in the United States the patent right has never been predicated upon
importation, and has never been limited to “manufactures.” See, e.g., Walterscheid, To
Promote the Progress of Useful Arts 93, 137-38, 224; see also Prager, Historic
Background and Foundation of American Patent Law, 5 Am. J. Legal Hist. at 309 (“The
American Revolution destroyed many of the ancient customs; it brought a sweeping
reorientation of patent law, with new forms, new rules, new concepts, and new ideals.”).
The differences between the American and English patent law at this nation’s founding
were marked, and English judicial decisions interpreting the English statute are of
limited use in interpreting the United States statute. In all events, no English decision
supports this court’s new restrictive definition of “process.”
The concurrence proposes that the Statute of Monopolies provides a binding
definition of the terms “manufacture,” “machine,” “composition of matter,” and “process”
in Section 101 of the U.S. Patent Act. See concurring op. at 5-8. The only one of these
terms that appears in the Statute of Monopolies is “manufacture”, a broad term that
reflects the usage of the period. Even at the time of this country’s founding, the usage
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