I caution against over-simplification, particularly in view of the uncertainties in
English common law at the time of this country’s founding. See Boulton v. Bull, 2 H. Bl.
463, 491 (C.P. 1795) (Eyre, C.J.) (“Patent rights are no where that I can find accurately
discussed in our books.”); MacLeod, Inventing the Industrial Revolution 61 (“It was only
from the time when the Privy Council relinquished jurisdiction that a case law on patents
began to develop. . . . But it was a slow process and even the spate of hard-fought
patent cases at the end of the eighteenth century did little to establish a solid core of
judicial wisdom.”). The English judicial opinions of the eighteenth century were not as
limiting on the United States as my colleagues suggest. See Walterscheid, The Nature
of the Intellectual Property Clause: A Study in Historical Perspective 355 (2002) (“In the
eighteenth century, patentees and those who gave advice concerning patents were
certainly of the view that the Statute did not preclude the patenting of general principles
of operation.”); see also MacLeod, Inventing the Industrial Revolution 63-64.
It is reported that in the century and a half following enactment of the Statute of
Monopolies, the English patent registers were replete with inventions claimed as
“processes.” See Walterscheid, Early Evolution (Part 3), 77 J.P.T.O.S. at 856 (“As one
of the earliest texts on the patent law stated in 1806: ‘most of the patents now taken out,
are by name, for the method of doing particular things . . . .”). The concurrence agrees;
but it is also reported that because patents were not litigated in the common law courts
until the Privy Council authorized such suits in 1752, judicial interpretation of various
aspects of patent law were essentially absent until about the time this country achieved
independence, leading to the variety of views expressed in Boulton v. Bull. The
legislators in the new United States cannot now be assigned the straightjacket of law
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