Restrain Me Not: Mitchel v Reynolds and Early 18th Century Patent Law

• Author: Chris Dent
• Position: LLB, BA (Hons), PhD (Murd). Associate Professor, School of Law, Murdoch University
• Pages: 3-23

RESTRAIN ME NOT:

MITCHEL V REYNOLDS

AND

EARLY 18TH CENTURY PATENT LAW

CHRIS DENT*

For historians of the patent system, the first half of the eighteenth century provides

little of use – with no reported decisions that clearly relate to a dispute over a

patent grant. The option presented here is to examine a non-patent decision, in a

related field, that sheds light on the assumptions and perspectives that underpin

the legal discourse of the time. Mitchel v Reynolds (1711) shares similarities with

the early seventeenth-century patent law; however, there were also differences that

make it look more “modern”. In terms of the former, there was still the tendency to

discuss patents for invention as only an example of the general Crown right to

grant charters and there remained an implicit acceptance of the mercantilist

approach to the economy. Differences between the eighteenth-century law and that

of the seventeenth-century include an acknowledgement of the perceived role of

patents in encouraging ingenuity and also of the individual’s freedom to contract.

A nuanced understanding of Mitchel v Reynolds, then, allows for a perspective of

the assumptions of the system in the “dark ages” between the Statute of

Monopolies and the reforms of the nineteenth century.

CONTENTS

I

Introduction ..................................................................................................

4

II

Current Knowledge of Early 18th Century Patent Law ..........................

5

III

The Decision in

Mitchel v Reynolds

.........................................................

8

IV

Patent-Relevant Inferences to be Drawn from

Mitchel v Reynolds

.....

12

V

Conclusion:

Mitchel v Reynolds

and Patent Law ....................................

22

* LLB, BA (Hons), PhD (Murd). Associate Professor, School of Law, Murdoch University.

4

The University of Western Australia Law Review

vol 41(2)

I INTRODUCTION

The early part of the eighteenth century is a quiet time as far as the history of

patent law goes. There were no statutes; and Hayward, in his compilation of

patent cases,1 refers to only four decisions2 – only one of which would be

understood to be a decision of relevance to patents for invention.3 Other

commentary has found additional material to discuss; however, even these

works have a broader span of focus than just the period 1701-1750 with little

discussion of the first part of the eighteenth century.4 Other commentary, on

the other hand, focuses on the (later) relationship between the industrial

revolution and the intellectual property system.5 This is not a criticism of the

commentators, as there is very little primary material to work with in the area.

It may also be that, given the fact that most of the current settings of the patent

system were put in place in the nineteenth century,6 others have seen less need

to explore the earlier period – the argument here is that it was the

developments in the eighteenth century that delimited the possibilities of

reforms in the nineteenth century and, therefore, are worthy of focused

examination.7

1 Hayward compiled all the decisions, up until 1883, from Webster’s Patent Cases, Carpmael’s Patent

Cases, the English Reports and other contemporaneous records of patent cases to produce the most

comprehensive set of patent decisions available.

2 All four of these decisions will be referred to in this article. There is one other decision of interest –

though it is not a patent case either. The decision of

Whitchurch v Hide

contains the clause ‘in the

cases of new inventions upon the act, that fixes the sole property of books in the authors, for it is

under a common general right upon the statute, so likewise under the act of parliament for vesting the

sole property in prints of new invention’: (1742) 2 Atk 391, 391; 26 ER 636, 637. What is odd about

this is the fact that it seems to refer to books as inventions – fu rther muddying the understanding of

innovation at the tim e (a time when invention and discovery were used interchangeably). The

interpretation of

Whitchurch v Hide

is, of course, made problematic by the lack of clarity around the

Act concerned – was it the

Statute of Anne 1710

(copyright) or the

Statute of M onopolies 1624

(patents)?

3 That decision was

R v Mussary

(1738) 1 HPC 153 – its relevance stems from the fact that it involved

a discussion of the writ of

scire facias

. The writ will be discussed in more detail below.

4 MacLeod’s work covers the period 1660-1800: Christine MacLeod,

Inventing the Industrial

Revolution: The English Patent System, 1660–1800

(Cambridge University Press, 2002); and

Bottomley’s from 1700-1852: Sean Bottomley,

The British Patent System during the Industrial

Revolution 1700-1852: From Privilege to Property

(Cambridge University Press, 2014).

5 See, eg, H I Dutton,

The Patent System and Inventive Activity during the Industrial Revolution,

1750-1852

(Manchester University Press, 1984).

6 See, eg, B Sherman and L Bently,

The Making of Modern Intellectual Property Law

(Cambridge

University Press, 1999).

7 For an analysis of the “sequential” nature of reforms in the intellectual property system, see Chris

Dent, ‘Registers of Artefacts of Creation – from the Late Medieval Period to the 19th Century’ (2014) 3

Laws

239.