Friday, May 8, 2020

Kelly and Burrell on British Patent Law

Catherine Kelly, University of Bristol, and Robert Burrell, University of Melbourne Law School, have posted two relatively recent articles from their backlist.  One is Myths of the Medical Methods Exclusion: Medicine and Patents in Nineteenth Century Britain, published in Legal Studies 38 (2018): 607-626:
This paper explores the interaction of British medical practitioners with the nascent intellectual property system in the nineteenth century. It challenges the generally accepted view that throughout the nineteenth century there was a settled or professionally agreed hostility to patenting. It demonstrates that medical practitioners made more substantial use of the patent system and related forms of protection than has previously been recognised. Nevertheless, the rate of patenting remained lower than in other fields of technical endeavour, but this can largely be explained by the public nature of medical practice during this period. This paper therefore seeks to retell the history of the exclusion of medical methods from patent protection, an exclusion whose history has produced a substantial body of scholarship. However, its aims go beyond this in that it also seeks to illuminate how medical practitioners engaged with the broader political and policy landscape in order to secure financial remuneration for their inventions. Through an exploration of how prominent doctors interacted with Parliament around claims for a financial reward, it demonstrates that doctors sought to use reputational advantage to leverage financial success and the important role that Parliament could play in that process. 
The other is Parliamentary Rewards and the Evolution of the Patent System, which appeared in the Cambridge Law Journal 74(1915): 423-449:
This article examines the impact on the patent system of rewards for innovation across the eighteenth and early nineteenth centuries. During this period Parliament would regularly grant rewards to inventors, with many of these rewards being set out in legislation. This legislation provided Parliament with the opportunity to promote a model of state support for inventors; a model that made public disclosure of the invention a precondition for assistance from the State. This had important implications for patent law, in particular, in helping to develop the role of the patent specification and the doctrine of sufficiency of disclosure. In this way the reward system helped establish the framework under which the State would provide support for inventors. Simultaneously, however, the reward system created a space in which inventors would have to do more than meet the minimum requirement of public disclosure. Rewards allowed the State to distinguish between different classes of inventor and to make special provision for particularly worthy individuals. In this way the reward system recognised the contribution of the ‘heroic inventor’, whilst leaving the core of the patent system undisturbed.
--Dan Ernst