History of Patent Law

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The history of patent law describes the historical development of property rights to inventions.

The origin of the word "patent"

The origin of the word “ patent ” lies in royal decrees and ordinances . These patents ( lat. Litterae patentes , open letters') were in the form of open letters (that is, you could read it without a seal to break), and were in France patents lettre or in England letters patent called and started in French with “ À tous ceux qui ces lettres verront ” or in English often with “ To all to whom these presents shall come (or may concern) ”, “ To all to whom shall see these presents or hear the same ” or similar introductions (earlier still forms the address of the patent documents of the United States Patent and Trademark Office ).

Patents were issued by the ruler and addressed to all subjects. Such documents have existed in England since the 13th century . A patent could be granted for many purposes, for example the appointment of officers ( officer patent ), the granting of concessions (concession patent ), the granting of a monopoly for trade and sales (trade patent) or the license to conquer land (land patent): a patent from 1496 permitted John Cabot , " to sail, to conquer, to own heathen land, and to exclude others from so doing ."

In the 14th century, industrial activity in England was still lagging behind the continent. The English kings began to call foreign experts to England and give them letters of protection .

Early approaches to protecting inventions can be found in the Bohemian and Saxon mining law. But in Venice there was already a privilege for the introduction of printing in 1469 . According to this description, the root word "invent" from "find something" comes from mining. The earliest forms of patent protection can be traced back to the early 15th century. They relate to the construction of flour mills, including windmills.

History of Patent Laws

The first patent law from Venice, 1474
The first patent specification of the German Empire, issued on July 2, 1877

Forerunners of the patent laws known to us are mentioned for the first time in Atheneus the Elder : Around 720 BC. The Greeks founded the colony Sybaris on the Gulf of Taranto in southern Italy . Due to their favorable location and fertile soil, Sybaris quickly became rich and the Sybarites became lovers of fine food and other culinary delights. Athenaus reports with reference to a lost work by the Greek historian Phylarchos :

“If one of the cooks invented a new, delicious dish, no one else should be allowed to use this invention for a year, but only the inventor himself. During this time he should have the business gain from doing it the others tried and competed to excel in such inventions. [...] "

- Deipnosophistai (p. 835)

Many aspects of modern patent legislation can already be found in this description:

  • Right of prohibition by the inventor
  • Requirement of novelty and industrial applicability for the invention
  • economic incentive as motivation
  • local restriction on the territory of Sybaris
  • time limit

Sybaris was born in 510 BC. Chr. Destroyed. In the Middle Ages , inventions were (relative) common property, that is, they belonged to all members of a guild. Outsiders were not allowed to use these inventions, whereby the reason for exclusion was usually the lack of guild membership. In 1404 the pastor Michael von Deutsch-Brod was granted an inventor's privilege for a water art . The records of a patent for an industrial invention date from 1421. At that time, Filippo Brunelleschi was granted the sole right to manufacture a ship with a lifting device for transporting marble for three years.

The first patent law as it is today was enacted in Venice in 1474, followed by the Statute of Monopolies in England (May 25, 1624) and France (1791). The “Statute of Monopolies” is a model for patent laws worldwide. The Netherlands was the last European state to enact a patent law in 1910.

Sir Francis Bacon , the great scientist, philosopher , statesman, and contemporary of Shakespeare , was convicted of bribery in 1621 . Contrary to his own public statements, he continued to grant arbitrary monopolies to the English crown as the Great Seal Keeper and Great Chancellor , which were of great use to its owners, but unbearable for society as a whole. Among other subject of the trading currants , salt , iron , powder , playing cards , calf hides , canvas , ox bone, train oil , fabric seams , potash , anise , vinegar , carbon , steel , brandy , brushes , pots , nitric , lead , oil , glass , Paper , starch , tin , sulfur , dried herrings , the export of cannons , beer , horn , leather and the import of Spanish wool and Irish yarn monopolies. These privileges had no legal basis and were therefore largely rejected.

This privilege practice was especially widespread in England. As early as 1601, the English crown had to abolish the most oppressive monopolies on essential goods and food, followed in 1623 by the well-known " Statute of Monopolies ", which meant extensive restrictions on monopolies.

History of the German Patent Act

The patent law of the city of Venice in 1474 contained all the essential criteria that make up our patent law today, namely the protection of personal intellectual property in an invention, the right to exclude others from it and the time limit.

In the 16th century, German princes granted monopolies on a larger scale. Some of these monopolies were called patents. These monopolies differ in several respects from patents in the current sense. There were patent law regulations in the individual German states only at the beginning of the 19th century, a total of 29 patent laws each with territorial effect. All these German laws protected the invention by keeping the granted patents secret until they expired. Both new inventions and tried and tested industrial processes that were introduced from abroad were patented. Some privileges offered protection against imitation (monopoly rights), others protection against restrictive guild regulations (and thus against monopolies and for more competition ). The latter privileges are said to have served to free industry from overly restrictive regulations imposed by guilds and authorities and thus to promote the industrial revolution in England. Patents on monopolies, benefiting court favorites or royal funders, became very numerous in England after 1560, and the abuses led to increasing general discontent.

The first patent infringement lawsuit was carried out in Nuremberg in 1593 because of a "newly invented Mühlwerckh" for grinding semi-precious stones. In 1601, the same proprietor of property rights obtained an injunction and a fine of 10 guilders against another infringer. On September 1, 1602, a patent infringer was “put in iron” in Nuremberg and was only freed after “renouncing” and paying the costs of detention. There was no separation between civil and criminal proceedings at the time. The patent owner received part of the penalty as compensation.

The German Patent Act of 1877

The patent law in the Reichs-Gesetzblatt from 1877

Even after the establishment of the German Reich in 1871, there was a controversial discussion about uniform patent protection. As recently as 1864, the German chambers of commerce had demanded the abolition of patents because they were "harmful to general prosperity " (see the main article on the anti-patent movement ). Chemnitz - as one of the most important industrial cities of the German Empire - became the cradle of the German patent law and played an important role in the creation of German patent law.

At the suggestion of the inventor and industrialist Werner von Siemens and the then Mayor of Chemnitz, Dr. Wilhelm André founded the patent protection association. The lawyers André, Rudolf Klostermann and Joseph Rosenthal were commissioned by the association chaired by Siemens to work out a draft for the patent law. But it was not until Werner von Siemens personally addressed Chancellor Bismarck that the introduction of German patent law continued. Werner von Siemens pointed out that German products were previously considered “cheap and bad” all over the world. That is why, in his view, a patent law also serves to strengthen German industry and give it a better reputation in the world.

The German Patent Act was passed on May 25, 1877. The André draft was accepted by the MPs only slightly modified. Its main features are still valid today.

It was no coincidence that the Lord Mayor of Chemnitz at the time, Wilhelm André - from 1874 to 1896 - took part in the introduction of German patent law: At that time, Chemnitz was a world-class industrial city where numerous inventions were made. These should be protected from imitators. This is clearly shown by the fact that in 1891 - only 14 years after the introduction of the German Patent Act - six times more patent applications came from Chemnitz than the national average.

Thus, at the urging of the Association of German Engineers (VDI) , the Patent Protection Association (Werner von Siemens) and the Chemnitz Mayor Wilhelm André , it was possible in the German Reich for the patent law to come into force on July 1, 1877. Only from this point in time were granted patents published.

The further development towards modern patent law was mainly shaped by the idea that the granting of a monopoly must be preceded by a corresponding inventive achievement. The most important criteria of patent law are theoretically based on the principle of performance and consideration . The exclusion of patenting of discoveries, ideas and known inventions is primarily intended to ensure the benefits of patent law for the proprietor of the property right, who often invested high costs in the development. The arbitrary granting of privileges was replaced by a detailed reconciliation of interests .

However, this principle of performance and consideration or the overall positive balance in the more recent extensions of patent law, for example in the area of ​​genes, is disputed. With the development of the genetic, bio and agroindustry, the patenting of biomaterial has come under fire and is criticized as biopiracy . In contrast to conventional patents mainly from physics, these patents are not based on "inventions", but at best they can prove the "functionality" of biomaterial, their compositions and the genetic material. This functionality, in turn, is seen as a component of experience and knowledge that has already existed in local societies over generations and is often indispensable for the survival of these societies. Nevertheless, patenting is legally permissible in many countries and is enshrined in agreements such as the TRIPS agreement . Against this patenting practice, India relies on the publication of traditional knowledge in a publicly accessible database.

A similar controversial situation, in which the sense and the balance are questioned in the general public, exists today with "computer-implemented inventions", the " software patents ".

Patent protection in Switzerland (from 1888)

In Switzerland there was no patent protection until well into the age of industrialization . The first attempts failed in 1866 and 1872. The prevailing opinion was that patent protection hinders economic competition. The first legislation on this did not come into being until June 29, 1888 - it excluded all those goods from patenting that "could not be represented by models" - which was supplemented around 1907 by the protection of chemical inventions.

literature

  • Peter Kurz: World History of Invention Protection. Inventors and patents as reflected in the times . Heymanns, Cologne a. a. 2000, ISBN 978-3-452-24331-7
  • Florian Mächtel: Patent law in war . Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150031-2
  • Martin Otto and Diethelm Klippel (eds.): History of German Patent Law , Tübingen: Mohr Siebeck 2015, ISBN 978-3-16-153562-8 .
  • Martin Otto: The history of patent law in the Federal Republic of Germany and its prehistory under Allied administration . In: Martin Otto / Diethelm Klippel (ed.): History of German patent law . Mohr Siebeck, Tübingen 2015, pp. 289-313, ISBN 978-3-16-153562-8 .
  • Hansjoerg Pohlmann: New materials for the early development of German inventor protection in the 16th century . In: GRUR 1960, p. 272 ​​ff.
  • Helmut Schippel: The beginnings of inventor protection in Venice . In: Uta Lindgren (Ed.): European technology in the Middle Ages. 800 to 1400. Tradition and innovation . 4th edition. Gebr. Mann, Berlin 2001, pp. 539-550, ISBN 3-7861-1748-9
  • Margrit Seckelmann: Industrialization, Internationalization and Patent Law in the German Empire, 1871–1914 , Frankfurt am Main: Klostermann, 2006
  • Alexander K. Schmidt: Inventor principle and inventor personality law in German patent law from 1877 to 1936 . Mohr Siebeck, Tübingen 2009, ISBN 978-3-16-150039-8
  • Rebekka Übler: The need to protect inventions. Progress and inventive step in the history of patent and utility model law . Mohr Siebeck 2014, ISBN 978-3-16-153016-6
  • Matthias Wießner: The patent law of the GDR , in: Zeitschrift für Neuere Rechtsgeschichte (2013) 3/4, pp. 230-271, ISSN  0250-6459

Individual evidence

  1. ^ Wolfgang-Pfaller.de: List of privileges
  2. ^ Giulio Mandich: Primi riconoscimenti veneziani di un diritto di privativa agli inventori , in: Rivista di diritto industriale 7 (1958) 101-155 and Roberto Berveglieri: Inventari stranieri a Venezia (1474-1788). Importazione di tecnologia e circolazione di tecnici artigiani inventori , Venice 1995.
  3. ^ Yonge, CD (1854). The Deipnosophists, Or, Banquet of the Learned of Athenaeus: Henry G. Bohn. P. 835 books.google.at
  4. ↑ Wolfgang-Pfaller.de: Venice Patent Law of 1474
  5. ↑ Helmut Schippel: The beginnings of inventor protection in Venice, in: Uta Lindgren (Ed.): European technology in the Middle Ages. 800 to 1400. Tradition and Innovation, 4th edition, Berlin 2001, pp. 539–550
  6. ↑ Wolfgang-Pfaller.de: Statute of Monopolies
  7. ^ Development of patent law in France
  8. ^ Patent law in Holland . In: Journal for Schwachstromtechnik . 4th year August 15, 1910, p. 396 . Reference taken from patent law in Holland . In: Spectrum of Science . No. 08 , 2010, ISSN  0170-2971 , p. 58 .
  9. ↑ Axel Jochum: Patent protection in our time, chemistry in our time, 3/1979, p. 51 ff.
  10. ↑ From Walkmen, stereo belts and Ikon cameras - Chemnitz University of Technology - accessed on December 13, 2011
  11. ↑ DPMA - history. In: dpma.de. Retrieved April 26, 2016 .
  12. ↑ ORF: Biopatents: Scientists criticize the practice of recognition of the archive link ( memento of the original of April 30, 2006 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. , ORF Sciens News from Science, viewed on June 15, 2008 @1@ 2Template: Webachiv / IABot / science.orf.at
  13. ↑ ORF: Database for the Protection of Traditional Knowledge Archive link ( Memento of the original from November 20, 2005 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , ORF Sciens News from Science, viewed on June 15, 2008 @1@ 2Template: Webachiv / IABot / science.orf.at
  14. ^ René Pahud de Mortanges: Swiss legal history. Ein Grundriss , Dike, St. Gallen and Zurich 2007, p. 269 f.