activity, product and process, and had nothing to do with new “inventions.” The Statute
of Monopolies cannot be held to have restricted the kinds of new processes that can
today be eligible for patenting in the United States, merely because it outlawed patents
on non-novel businesses in England. The presence or absence of “organizing human
activity,” a vague term created by the concurrence, has no connection or relevance to
Parliament’s elimination of monopoly patronage grants for old, established arts. The
Statute of Monopolies neither excluded nor included inventions that involve human
activity, although the words “the sole working or making in any manner of new
manufactures” presuppose human activity. 21 Jac. 1, c.3, §VI (emphases added). We
are directed to no authority for the proposition that a new and inventive process
involving “human activity” has historically been treated differently from other processes;
indeed, most inventions involve human activity.
The concurrence has provided hints of the complexity of the evolution of patent
law in England, as in the United States, as the Industrial Revolution took hold.
Historians have recognized these complexities. See, e.g., Walterscheid, To Promote
the Progress of Useful Arts 5 (“[T]he American patent law almost from its inception
departed from its common law counterpart in the interpretation that would be given to
the definition of novelty . . . .”); Klitzke, Historical Background of the English Patent Law,
41 J.P.O.S. at 638 (noting that in Elizabethan times, novelty only required a showing
that “the industry had not been carried on within the realm within a reasonable period of
time, while today “the proof of a single public sale of an article” or a “printed publication”
can negate patentability).
2007-1130
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