Developing a Legal Paradigm for Patents: the attitude of judges to patents during the early phase of the Industrial Revolution in England (1750s – 1830s)

For centuries, courts of law have been faced with the problem of determining what type of innovation is an appropriate subject matter for a patent. With each technical advance, the question of what is, and what is not, patentable must once again be determined by the courts. In more recent times, software based inventions have been the subject of considerable legal controversy and uncertainty. If a computer program is not patentable, and can only be protected by copyright, does that mean it is not possible to patent software for a program-controlled machine, or a program-controlled manufacturing process? Or should a distinction be drawn between a computer program as such and a computer program controlling a technical process? Can newly identified DNA sequences be patented or is that simply the discovery of scientific principles? The type of technology at issue may have changed since the eighteenth century, but the legal discussions these developments have engendered show some remarkable similarities to the discussions that were taking place in the courts during the Industrial Revolution. This study traces the development of a legal structure for patents for invention during the earlier phase of the Industrial Revolution in England (1750s-1830s). It charts the development of patent law by examining judicial decision-making in patent disputes in this period. Its focus is on the attitude of judges to patents. It examines what factors judges may have taken into account in reaching their decisions and how these factors may have affected the moulding of the legal concepts of patent law.

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