Four hundred years ago today, on 29 May 1624, the Statute of Monopolies received Royal Assent in the English Parliament; its first patent statute to protect inventions. The Statute was a landmark piece of legislation that influenced the development of patent law in countries worldwide, but perhaps none more so than in Australia and New Zealand, where it continues to shape the law.
The enactment of the Statute of Monopolies was a significant moment in the history of patent law as it set out fundamental tenets that serve as the foundation of modern patent systems. However, its significance is not just historical. The Australian Patents Act 1990 and the New Zealand Patents Act 2013 both refer to section 6 of the Statute of Monopolies in defining what constitutes a "patentable invention".
Patently absurd?
At first glance, it seems absurd that an English statute from the 17th century would define a patentable invention in modern-day Australia and New Zealand. When the Statute of Monopolies was enacted in 1624, European explorers had only made initial voyages to Australia and were yet to see New Zealand.
However, the courts of Australia and New Zealand have developed principles for applying section 6 of the Statute, ensuring it remains relevant to inventions that would have been unimaginable to the English politician Sir Edward Coke when he drafted the Statute.
Statute of Monopolies
Unlike modern patent legislation, Coke’s goal was not to encourage innovation but to prevent the English monarch, King James I, from collecting revenue by granting patents for common commodities like salt.
In modern language, section 6 of the Statute of Monopolies states:
"Provided also and be it declared and enacted, that any declaration, before-mentioned, shall not extend to any letters patent and grants of privilege for the term of fourteen years, or under, hereafter to be made, of the sole working or making of any manner of new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others at the time of making such letters patent and grants shall not use, so as also they be not contrary to the law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient."
Section 6 sets out the following fundamental tenets of a patent system:
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an invention must be new to be granted a patent, i.e., "any manner of new manufactures"
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a patent is granted to the "true and first inventor and inventors"
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patent protection is for a limited term (then a maximum of 14 years and now a maximum of 20 years).
Manner of manufacture Down Under
The Australian Patents Act 1990 and the New Zealand Patents Act 2013 each state that an invention is a "patentable invention" if, among other things, it is "a manner of manufacture within the meaning of section 6 of the Statute of Monopolies".[1]
In the NRDC decision, [2] the High Court of Australia declared that an enquiry into what constitutes a "manner of manufacture" is not an enquiry into the meaning of the words so much as into the breadth of the concept. The right question is: "Is this a proper subject of Letters Patent according to the principles which have been developed for the application of s.6 of the Statute of Monopolies?" The NRDC decision was quickly adopted in New Zealand.[3]
The principles developed for applying section 6 of the Statute of Monopolies have been applied by the courts of Australia and New Zealand to determine whether cutting-edge technology, including isolated nucleic acids in Australia,[4] and novel methods of medical treatment in New Zealand,[5] is patentable.
400th anniversary
Four hundred years after the Statute of Monopolies received Royal assent from a reluctant King James I, the Statute continues to play an unlikely leading role in defining a patentable invention in the laws of Australia and New Zealand.
The versatility of the words "manner of manufacture", combined with judicial inventiveness has meant that, after 400 years, the Statute of Monopolies remains as relevant as ever.
[1] Patents Act 1990, s18(1) and Patents Act 2013, s14(1).
[2] National Research Development Corporation v Commissioner of Patents [1959] HCA 67.
[3] Swift & Co v Commissioner of Patents [1960] NZLR 775.
[4] D’Arcy v Myriad Genetics Inc [2015] HCA 35.
[5] Pfizer Inc v Commissioner of Patents [2005] 1 NZLR 362.
