The Common Law Invention in its Original Form

Abstract:     
Patent jurisprudence depends fundamentally on the concept of the inherently patentable subject matter or, as that subject matter is frequently denoted, the invention. In the common law world the invention was first given statutory expression in 1623 when the principles of the early English patent custom were codified in the Statute of Monopolies. However, whilst the Statute of Monopolies is generally accepted as forming the basis of all common law patent systems including modern conceptions of the invention itself, discussions of its provisions have tended to be ignorant of the principles those provisions were intended to reflect on its original enactment. The result has been a tendency to treat the Statute of Monopolies as having given rise to a new body of law, rather than given legislative form to an existing jurisprudence. This tendency - first recognised by E Wyndham Hulme in 1896 - continues to be particularly problematic in countries (such as Australia and New Zealand) in which the meaning of "invention" still derives expressly from the Statute of Monopolies, and in other common law countries that continue to rely on jurisprudence said to originate with the Statute of Monopolies to explicate their own patent legislation

The purpose of this article is to analyse the origin and early development of the invention at common law with a view to understanding the scope of inherent patentability at the date of enactment of the Statute of Monopolies. In so doing it is hoped to offer some insight into how the Statute of Monopolies is best understood within its contemporary setting, and how its enactment should properly be regarded today.

Keywords: common, law, invention

JEL Classifications: K39

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