| 1.
Few are perhaps aware of the fact that, like the promotion of science and
knowledge, the practice of granting of Intellectual Property Rights ( IPRs
) in some form or other is also as old as the history of modern science
and technology itself . F.Liebensny in his " Mainly on Patents" ( London
Butterworths) has elegantly described the early history of IPRs in general
and of patents in particular. Even though, interestingly enough, a monopoly
for an invention is first reported around 500 BC in the luxury-loving colony
of Sybaris - where, according to the Greek historian Phylarchus, ‘ if any
confectioner or cook invented any peculiar and exclusive dish, no other
artist was allowed to make this for a year, but he alone who invented it
was entitled to all the profit to be derived from the manufacture of it
for that time, in order that others might be induced to labour at excelling
in such pursuits’- this is considered as an isolated case and there are
hardly any mention of such events during the Greek and Roman periods. According
to the historian Gomme ‘ an ever available supply of slave labour, the
absence of any but the simplest machinery and of all but the slowest production
methods, and the dependence of each locality on its own handicrafts, provided
little occasion for the (Greek and Roman) States to intervene or for the
innovator to conceive the idea of a monopoly to protect him against copyists
‘ , even though commerce and industry were significant in their economies.
It has even been reported that the Roman emperors did not encourage technological
advance for increased productivity and one emperor Tiberius reportedly
used to ask " who will take care of my poor ", if machines reduced human
labour . Archimedes was praised for not describing his practical inventions,
as belonging to an art ‘vile, low and mercenary’, and the word ‘engineer’
could be used in Greece as a term of abuse. With manufacture being the
province of the slaves and the philosophers who might make inventions being
too proud of themselves or too detached to seek material profit from their
knowledge , the society did not see growth of science as one leading to
technology and to resultant material prosperity. Interestingly enough,
one sees quite some comparison of this phenomenon in the pre-British Indian
society as well , with the oft-quoted dictum ‘ Saraswathi and Lakshmi never
for one together ‘ ! In other words, rewards for useful inventions had
to wait till practice of science led to useful technologies and products
and from which society accrued benefits.
2.
The earliest record of a patent granted for a true industrial invention
is found in 1421 in Florence to the engineer-architect Brunelleschi for
a barge with a hoist gear to transport marble needed for his buildings.
The grant read as follows:
" …the privilege
is granted with the express intention not only that the invention may be
made useful as well for himself as for the generality but particularly
also that he himself may be urged to further extertion and stimulated to
greater inventions; the Government agrees to protect the inventor against
unauthorized working and to grant the author an immediate monopoly for
the period stated by prohibiting the use… unless built by Brunellschi himself
or with his consent".
3.
All the same it was Venice which was the first state in Europe to issue
the first patent law on 19th March 1474 by an overwhelming majority of
the Senate. It read as below:
"There are many
in this City and its surroundings, attracted by its excellence and greatness,
many men of diverse origin, having most subtle minds and apt to imagine
and discover divers ingenious artifices.And if it were provided that others
may not make or take unto themselves to increase their own honour the works
and artifices they may have seen so discovered by such men, such men would
use their minds, and would discover and make things which would be of no
little utility and advantage to our State… Whoever will make in this City
any new and ingenious artifice, not made previously in our State, will
be obliged to register it at the office of our providitors of the Commune,
as soon as it is reduced to perfection, so that it will be possible to
use and apply it. It shall be forbidden to anyone else in any our land
and place to make any other artifice to the image and similarity of that
one without consent and license of the author during the term of ten years."
4.
Significantly enough, among the 100 and odd patents granted in Venice by
1550, the notable one was what was granted to Galileo in 1594 for a device
for raising water and irrigating land by which a single horse provided
power to discharge water through twenty sprouts !
5.
The ideas related to patenting spread to other parts of Europe through
the Venitian glass workers, with they insisting on such protection measures
wherever they we settled. In Germany such measures were extended to mining
and metallurgy , in England to textiles , white hard soap, playing cards,
and so on. During the second half of 1500 , as many as 50 patent monopolies
were in force in England to encourage English industry and to make England
self-sufficient. Concurrently there were also protests against the grant
of such monopolies based invariably even on royal prerogatives and this
eventually culminated in the passage of Statute of Monopolies in 1623 ,
which banned all monopolies except patents of invention , the grant of
which being solely controlled by the common laws of the land. But the procedures
remained highly complicated and cumbersome ( as described in Charles Dickens’s
"A Poor Man’s Tale of a Patent" ) . While on the one hand the patent requests
steadily increased with time, more so with the onset of the epoch-making
Industrial Revolution , steady refinements were also introduced into the
patent laws and patenting practices. The Patent Law Amendment 1852 for
the first time entrusted with a single Patent Office the required authority
to handle all matters connected with patents. Further reforms were continued
in 1883, 1907, 1919 and finally in 1949 , and finally in the nineties to
match with the Trade Related Intellectual Property Rights ( TRIPS) under
the WTO regime.
6.
Similar changes took place in France, Germany and other European countries
also – beginning with France in 1791,Austria in 1794,Russia in 1812, Prussia
in 1815,Belgium and Netherland in 1817, Sweden in 1834, and so on - with
all of them going through different stages of technology generation/protection
measures and by following by and large similar concepts with respect to
definition of terms and the detailing of the regulatory clauses while formulating
their Patent Laws. The early history describing measures to protect their
hard-developed technologies from foreign competitors provides very interesting
reading. Once UK assumed her superiority in technology after the Industrial
Revolution, measures such as ban of entry to factories, ban on emigration
of skilled workers for jobs abroad ( " suborning") leading to even loss
of nationality, legal banning the export of "tools and utensils" later
changed to "any machine, engine, tool, press, paper, utensil or implement
whatsoever" were resorted to. In turn the less advanced ones resorted to
"illegitimate" measures often with support of their governments as in the
cases of France, Sweden, Norway, Denmark, Netherlands, etc in the form
of espionage. However over the years, technologies became more complex
in the form of sophisticated machinery and by mid 19th century , the patents-based
protection became once again more wide spread, notwithstanding the fact
that there were also opponents to patenting practices.Netherlands which
introduced her patent law in 1817 abolished it in 1869.It introduced another
law only in 1912.Switzerland did not provide IP protection till 1888. Only
in 1907 a law worth its name was introduced essentially by the threat of
trade sanction from Germany in retaliation to the Swiss use of its chemical
and pharmaceutical compositions.Even this law provided only for processes(not
products).It was only in 1954 that Swiss patent law became comparable with
those of other advanced countries, although chemical substances remained
nonpatentable until 1978. In USA, the Congress itself was empowered in
the Constitution of 1789 " to promote the Progress of Science and useful
arts, by securing for limited times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries", eventually leading
to perhaps the most " market-friendly" patent law in the world. President
Abraham Lincoln is reported to have said that the patent system adds "the
fuel of interest to the fire of genius". Interestingly enough, President
Jefferson argued, even while presiding over the First Patent Board of the
country, that " ideas should freely spread from one to another…Invention
then cannot, by nature, be a subject of property". USSR, as expected of
its socialist policies, followed a totally different approach. Useful inventions
were declared public property - thereafter a model for the socialist treatment
of inventions with inventors with the certificate of authorship but rights
vested with the Government. And so on.
In
summary , it is to be emphasized that the present day patent laws were
the products of a nearly five centuries long period during which they were
refined and modified successively to satisfy the continuously emerging
needs of the market-based scientific-technological-industrial developments
in the countries of the West . And no surprise that these laws have now
emerged as the corner stones of capitalist development – research leading
to new industrial products and processes, production and commercialization
and marketing and trade in all parts of the globe. |