I would have loved to have been a fly on the wall of the Parliamentary Counsel Office when the drafting of s 14 of the Patents Act 2013 was discussed. As you may recall, s 14 provides that an invention is a patentable invention if, amongst other things, it is a manner of manufacture within the meaning of s 6 of the Statute of Monopolies 1623.
Yep, 1623. From the time of King James I. And this is the section that is called into action to assess the patentability of the outermost reaches of new technologies. It provides as follows:
Provided alsoe That any Declaracion before mencioned shall not extend to any tres Patents and Graunt of Privilege for the tearme of fowerteene yeares or under, hereafter to be made of the sole working or makinge of any manner of new Manufactures within this Realme, to the true and first Inventor and Inventors of such Manufactures, which others at the tyme of makinge such tres Patents and Graunts shall not use, soe as alsoe they be not contrary to the Lawe nor mischievous to the State, by raisinge prices of Commodities at home, or hurt of Trade, or generallie inconvenient; the said fourteene yeares to be accomplished from the date of the first tres Patents or Grant of such priviledge hereafter to be made, but that the same shall be of such force as they should be if this Act had never byn made, and of none other.
This is the text that we turn to when we decide, for example, whether software programs or diagnostic tests based on genetics are patentable. I mean, it doesn’t mesh entirely comfortably with the PCO’s goal of ensuring that modern legislation is easy to find, use and understand. I wonder who had the job of suggesting that this archaism needed to remain:
- “So you’re saying that people have to go and look up a section of an Act from the time of King James??!”
- “Well, um, yes….”
- “Can we at least put it in plain English?”
- “Well…not really, no.”
- “And why not, exactly?”
- “Well, to be honest, no-one really knows what it means.”
- [pulls out hair]
Of course, we do sort of know what it means – it has the various incremental meanings that have been ascribed to it over time by many bemused or impatient judges. That slow accretion of case law has now buried the original text in layers and layers of accumulated wisdom, and the fact that the original wording means next to nothing is now all but irrelevant. The system works fine – more or less – so long as we try not to think about the fact that the whole thing is built on a base that is fundamentally unsound.
So we are now left with this archaic oddity that no-one wants to investigate too closely in case prodding it causes the whole edifice above it to collapse. (Let’s play stare decisis Jenga!) I mean, it is far from ideal, but in a funny kind of way the unlikely, quirky randomness of it all is fascinating – in the same way that an insect trapped in amber is a fascinating and unlikely relic from an earlier time.
The original purpose of the Statute of Monopolies was very different: it was to stop King James from granting “odious monopolies” over everyday staples. These monopolies had the same effect that anti-competitive structures always do: they drove up prices, and people complained. The monopolies were therefore abolished, subject to the particular carve-out for certain types of patent monopolies in s 6. These monopolies were retained because England needed the skills and inventions of international tradies, such as glass workers, and it wanted to attract them to its shores.
But apart from universal constants of human behaviour, such as the abuse of monopoly power, in general the world of 1623 bore scant resemblance to ours. For example, not long before, King James himself had published a serious, educational book on demonology, werewolves and vampires. The book endorsed witch hunting and the severe punishment of those used as instruments of Satan. (It did not, of course, prove as enduring as the other literary work with which he is associated: the King James Bible).
Other matters facing the people of Europe at that time included periodic bouts of the bubonic plague, the first sightings of exotic fruits such as bananas, the first tastes of tea and coffee, and the first use of forks. There was no street lighting, no banking, no toothbrushes, no means of transport faster than a horse, and glass windows were a luxury. In Italy, Galileo was busy working out many things scientific and astronomical.
If citizens of that time had been asked to think about what aspects of their society might still be going strong nearly 400 years later, I am willing to bet that not one of them would have put s 6 of the Statute of Monopolies on the list. It really is quite a tale of survival against the odds. Even if it is just a bunch of largely meaningless words, and even if its continued existence is a travesty and an affront to access to justice, on my more generous days I’m still kind of glad it has stuck around.