Center for Advanced Study & Research on Intellectual Property

 

CASRIP Newsletter - Spring/Summer 2005, Volume 12, Issue 1

Monopoly as Rhetoric: The Case of Letters Patent

By Laura Ford

There is, on the American continent particularly, a tendency to believe that the patent system sprang full-born, like Pallas Athene from the forehead of Zeus, when in the United States the framers of the Constitution incorporated the provision investing Congress with the power to enact the necessary legislation ‘to promote the progress of science and useful arts’….Such views are, however, open to question. [1]

Recent cases,[2] administrative pronouncements,[3] and legal scholarship[4] seem to draw a sharp distinction between “monopolies” and “patents,” portraying the United States antitrust laws (which purport to prohibit “monopolizing”[5]) and intellectual property laws as operating in harmony in the promotion of economic welfare.  And yet, there is a long tradition in U.S. case-law of characterizing patents (and other forms of intellectual property) as “monopolies.”[6]  The purpose of this paper is to briefly trace the history of “monopolies,” as this history intersects with that of “letters patent,” to develop an explanation for this apparent inconsistency in American jurisprudence.  The argument advanced here is that it is the rhetorical power of the word “monopoly” in the English language, combined with a perception that patents (and intellectual property generally) are increasing in economic importance, which explains the American ambivalence with respect to the relationship between “patents” and “monopolies.”

I.          Ancient Origins

The word “monopoly” is originally derived from the Greek language, a combination of “monos” (meaning “alone, only, single”) and “polein” (meaning “to sell”).[7]  Thus the word literally means “single seller.”  One of the earliest recorded uses of the term was by Aristotle, in the context of a discussion of the “art of wealth-getting.”[8]  In Book I of the Politics, after a discussion of the “theory of wealth-getting,” Aristotle proceeded to the “practical part,” which he conceded was “not unworthy of philosophy,” but still “illiberal and irksome.”[9]  Aristotle briefly discussed “the several divisions of wealth-getting”[10] before finally stating that it might be useful for someone to “collect the scattered stories of the ways in which individuals have succeeded in amassing a fortune.”[11]  Interestingly, both of Aristotle’s contributions to such a collection concerned the “art” of creating a monopoly,[12] which Aristotle viewed as a useful device of “universal application” for cities and households alike,[13] although he appeared to concede that such an “art” might earn opprobrium from those upon whom it was practiced.[14]

The term monopolium found its way into Latin sometime near the beginning of the Common Era,[15] during the period of Roman transformation from a Republican to a monarchical Empire.[16]  Despite several important exceptions, it is generally true that the early Roman Emperors and Senate refrained from direct interference in economic affairs; thus there were relatively few instances of “state monopoly” during the early and middle periods of the Roman Empire.[17]  However, the contemporary Egyptian and Phoenician governors exercised wide-ranging regulatory controls over particular trades,[18] and these controls sometimes took the form of monopoly grants.[19]  In the case of Egypt, the Roman emperors may have had some direct involvement in the administration of these monopolies, since Egypt was administered by the Roman emperors through native Greek officials.[20]  Nevertheless, there is very little indication that Romans, Greeks or Egyptians regarded monopoly as a governmental tool to stimulate increased production; rather, where used as a governmental tool it seems to have served primarily to enable regulation and ensure subsistence-level provision.[21]  According to Harold Fox, complaints against monopolies in Rome, and an early imperial prohibition, concerned monopolies exercised by individuals or associations through their independent acquisition of control over a particular trade in a particular place, absent any grant from Emperor or Senate.[22]    

Nevertheless, the prototype for “letters patent,” which in the future would be used to transfer exclusive rights of sale from European monarchs, was developed during this period through the struggle to delineate the rights and duties of various “persons” under Roman law.[23]  As the Roman Empire developed out of the Republic, it became necessary to define the extent to which various categories of individuals, as well as previously independent city-states, new colonies (colonia), captured city-states, and the numerous associations of neighbors, craftsmen, tradesmen and merchants (collegia or corpora),[24] possessed the various “freedoms” (liberties) of Roman citizens under Roman law.[25]  Under Roman law, cives (Roman citizens) possessed two general categories of liberties: those that were considered “public” and those that were considered “private.”[26]  In the case of the latter, one important sub-category, denominated under the heading of commercium, generally included the rights and duties associated with use and ownership of property, including the ability to have such rights and duties vindicated through legal proceedings.[27]  If a town or city was declared a municipium (a “free city”), its citizens (the municipes) would usually acquire the rights and duties of commercium,[28] as well as such other “privileges”[29] and “immunities”[30] as the Emperor or the Senate might see fit to grant.[31]  The Roman jurists reasoned by analogy that collegia and corpora were also capable of possessing rights and duties under private law.[32]  Like the municipia, the collegia often acquired their privileges and immunities by transfer from a person with the authority to grant them.[33]  The transfer of privileges and immunities to municipia, collegia and corpora was generally accomplished through an enactment of the body granting it: where this was the Emperor, the transfer might take the form of a lex,[34] or, in the later period of the Empire, a rescripta handled by the Emperor’s “office of letters.”[35]

During the imperial reign of Diocletian (245-313 C.E.), in the wake of continuous wars and economic decline, the policy of granting privileges and immunities to municipia, corpora and collegia was used to acquire control over the economy: in exchange for grants of privilege and immunity, the collegia, corpora and municipia, as well as the rural latifundia (agricultural manors, demesnes), collected and paid increasingly onerous taxes, and organized industry and labor according to the dictates of imperial policy.[36]  This policy of imperially-granted monopoly, effectuated through the exchange of privileges and immunities for imperial control, appears to have continued after the collapse of the Roman Empire and the accompanying shift of imperial power to Byzantium.[37]  In 483 C.E. an edict of the (Byzantine) Emperor Zeno sought to limit the use of monopoly as follows:

That no one may presume to exercise a monopoly of any kind of clothing or of fish or of any other thing serving for food or for any other use, whatever its nature may be, either on his own authority or under a rescript of an emperor already procured, or that may hereafter be procured, or under an imperial decree or under a rescript signed by our Majesty; nor may any person combine or agree in unlawful meeting that different kinds of merchandize may not be sold at a less price than they may have agreed upon among themselves.[38]

This edict was later incorporated into Justinian’s Corpus Iuris Civilis.[39]

What is interesting and significant about this edict is its differentiation between two distinct types of “monopoly”: (1) monopoly procured under a rescript (letter) of the emperor transferring privileges and immunities, and (2) monopoly procured on an individual’s “own authority,” (i.e. the monopoly acquired by an individual, as described by Aristotle).  Also, the edict prohibited a close relative of “monopoly” by prohibiting combinations, associations or agreements among more than one person that have the same effect as that achievable by a single seller: the raising of prices.  As will be seen, this extension of the concept of “monopoly” to capture other “restraints” survived in emergent European legal systems, including English common law, and was incorporated into the American Sherman Anti-trust Act of 1890 (the “Sherman Act”). [40]

 What appears to have been missing from the Ancient conception of monopolies was any sense that they might be useful to the government in stimulating production of new technologies or creative expression.[41]  Ancient governments do not appear to have been completely insensitive to the value of rewarding such endeavors, however.[42]  Moreover, the Ancient practice of providing status, power, and economic resources, in exchange for (regulatory) control, through letters (rescripts) from the sovereign transferring privileges and immunities, provided a prototype for the early European patent system.  The essential additional ingredient, provided in the late medieval period, was the development of an economic component to civic pride, which expressed itself in the growing nationalism and mercantilism of that period.[43]

II.         Medieval Developments

Between the adoption of the Christian faith by Constantine in the Fourth Century C.E. and the Ninth Century C.E., successive waves of Germanic invasion in the West, followed by internal religious discord and Arab-Islamic conquest in the East, severed most of the Western empire from the Mediterranean, and thus from trade.[44]  Many of the Roman cities of the West survived only in a weakened state, shorn of their character as the center of the Roman constitutional system, becoming mere shelters in time of attack.[45]  However, they retained limited social functions through the Church, which often established its diocesan boundaries around the old Roman civitas.[46]  Thus the cities of the Ninth Century served important social roles, while at the same time offering defense and refuge against continuing invasion and wars between ambitious landowner-princes.[47]  These later sought to seize power over ever-increasing expanses of territory, while in turn obligating themselves to protect the peoples and cities within that territory.[48] 

The economic rebirth of the cities came with the expansion of trade through the Mediterranean, Baltic and North Seas, which accelerated through Italian and Flemish cities beginning in the Tenth and Eleventh Centuries, and with the coinciding growth of a merchant class.[49]  The coastal Italian cities continued to utilize their naval prowess to full advantage, trading agricultural surpluses with the coastal cities of the East, in exchange for the wealth of products and accumulated knowledge that civilization had to provide.[50]  As the Italian cities competed with each other, they produced innovation in financial and economic matters that was supplemented with eastern wisdom.[51]  The Flemish cities of Northern Europe, in turn, steadily expanded trade with England, Scandinavia and Russia.[52]  At the same time, in the interior of nascent Europe, a new class of journeyman merchant began to arise, separated from serfdom only by the inability of the landowner to prove his serf origins and to locate him, and later protected by the self-interested laws of the princes.[53]  These merchants traveled from the coastal cities through the hinterland, selling their wares at medieval fairs, and settling the cities to the point that specially-designated “merchant cities” developed outside the original walled enclosures.[54]

A large portion of this increased scale of economic activity and commerce was made possible by, and organized through, cooperative social structures, including the cities, but also including organizations bearing certain similarities to the Roman collegia: in the Anglo-Saxon tongue they were referred to as guilds,[55] in the Northern European cities as hanses,[56] and in the vernacular Latin tongue they were referred to as fraires, charites, and compagnies.[57]  Within the cities, people viewed themselves as forming a commune, under which they swore an oath of solidarity and loyalty, forming a corps, referred to alternatively as a communitas.[58]  Coextensive with the commune, and providing key social and political elements, were the guilds, which provided for the financial needs of the towns and cities at the same time that their chiefs served as the magistrates.[59]  Beginning in the Twelfth Century, the communes were granted charters from the princes, incorporating them as independent legal entities, governed by their own laws and institutions, which were often provided by the guilds.[60]

In the Twelfth and Thirteenth Centuries, the pace of international trade and commerce accelerated.  The cities of northern Europe, in order to cooperate against international competition, and to provide “congenial association” and protection for merchants traveling away from home, formed hanseatic alliances.[61]  The “London Hanse” was comprised of approximately 25 cities, including London, Bruges, Ypres, and Troyes.[62]  However, the most powerful of such hanseatic alliances was formed in 1252 between Hamburg, Lübeck and Bruges.[63]  By the Fourteenth Century, the “Hanseatic League” (as it was first called in 1370) was comprised of fifty-two towns and cities (including Danzig, Bremen, Novgorod, Berlin, Stockholm, and London), and exercised almost complete control over northern European commerce.[64]  The League possessed a breathtaking array of political and economic powers, which included waging war on its own behalf, enacting laws, controlling prices and quantities of goods traded by member cities, and establishing courts for disputes among its member cities and defending those member cities against litigation from outside the League.[65]  The League was prevented from extending further south in Europe only by the formation of The Rhenish League (comprised of Cologne, Mainz, Speyer, Worms, Strasbourg and Basel) in 1254.[66]

Meanwhile, at the southern end of Europe, the Italian cities had continued to evolve the compagnia as a partnership of individuals linked in a common economic enterprise.[67]  The Italians developed flexible structures for such compagnia that created incentives for individuals outside the family unit to invest.[68]  At the same time, advances in accounting and the invention of double-entry bookkeeping permitted a previously unknown degree of precision in stating the value of each partner’s share in the enterprise.[69]  One primary use of the compagnia form was in the development of the Florentine merchant banks.[70]

During the Fourteenth Century, as the activities of the compagnia expanded beyond their origin cities, they developed highly centralized decision-making structures to coordinate their business activities with “foreign policy.”[71]   A committee of senior partners (maggiori) made major policy and operational decisions, conducting periodic visits to sites of operation, auditing the activities of the salaried site managers (fattori), and securing exclusive rights from powerful princes.[72]  At about the same time, the Venetians and Genoans developed a hybrid of the compagnia, alternatively called the colleganza, collegantia or commenda, which was uniquely suited to overseas voyages.[73]  Under this form, certain participants in the enterprise contributed funding (“capital”), while other participants contributed the labor and effort required to transport goods and sell them, with the capital contributor’s potential losses limited to the amount of his investment.[74]  The shares of wealth from the journey were settled up at the end, and thus the colleganza was dissolved.[75]  The “joint-stock company” was born in Fourteenth-Century Genoa when the shares (partes) in the colleganza were made transferable.[76]

Between the Fourteenth and Fifteenth Centuries the powerful economic force of the North, the Hanseatic League, met the Italian merchant compagnies and commenda of the South, exponentially expanding trade by sea and gradually through land.[77]  Land-based trade was primarily conducted through fairs, which were at first periodic but later became continuous, adding to the economic power of the cities in which such fairs were conducted.[78]  The term used to denominate the organizations which came to trade at the fair in Bruges, nations, points to the development that, in the end, had the greatest significance for “letters patent” and monopoly.[79]

III.        Nationalism, Mercantilism, Privileges and Immunities

The developments in political and economic organization that have thus far been described corresponded to, and were enabled by, transfers of privilege and immunities among popes, princes, cities, guilds and emerging corporate entities.[80]  Such transfers permitted the economic sphere to develop with the protection of the military might of princes and kings, and served to separate spheres of power and authority between the church, the emerging nation-states of Europe, the guilds, the cities, and corporate enterprise.[81]  In England, the earliest of such transfers often concerned cities, townships and boroughs,[82] and frequently used the words “franchise” and “liberty” as rough equivalents to privilege/immunity;[83] they also often provided a monopoly to the merchants and craftsmen (and/or their guild) of the city, town or borough.[84]  Such privileges and immunities, franchises and liberties, could be transferred by one or more of several formal means, including charters and, most significantly, “letters patent.” [85]

Meanwhile, as spheres of jurisdiction and authority were increasingly delineated, a competitive “capitalist spirit” gradually developed, which manifested itself in several distinct but related ways.[86]  First, identity became increasingly associated with political organizations, whether city-state or emerging nation-state:[87] a person was a Venetian or an Englishman.  Correspondingly, the survival of the political organization was increasingly perceived by an ever-widening group of persons to be essentially important, and tied to increasing the wealth of the political organization.[88]  Thus measures designed to increase the wealth of the nation were extolled and defended in strident terms.[89]  These are the essential ingredients of “nationalism,” which first appeared in virulent form in England in the Seventeenth Century, rapidly spreading across Europe and to America.[90]

Initially, the “wealth” of the nation was defined by the amount of gold contained in the national treasury; thus developed the economic policy of “mercantilism,” which focused on maintaining exports at a greater level than imports, in order to ensure that gold inflow exceeded gold outflow.[91]  In order to ensure that exports exceeded imports, however, it was necessary to provide substantial support to locally developing industries, and to try to expand the scale and scope of domestic industry as much as possible, so that there would be products to export.  This was initially accomplished by encouraging skilled craftsmen to immigrate, and thus the early precursors to patents for invention were the so-called “importation franchises,” which granted privileges and immunities to craftsmen who were willing to transfer residence to the territory of the granting political organization and to train the local populace in the “mysteries” of a particular craft.[92]  Such privileges and immunities, franchises and liberties, often included the exclusive right to practice the particular imported craft for a period of time.[93]  In the Fifteenth and Sixteenth Centuries, this practice of granting exclusive rights in order to stimulate domestic production was extended to the case of new inventions.[94] 

However, the overall exchange between sovereign and citizen/organization continued to serve a variety of goals, including regulation of industry, stimulation of production, delineation of jurisdiction, tax collection and policing, to name a few.[95]  Moreover, the driving forces of nationalism and mercantilism contained very little concern for individual rights in their early manifestations.[96]  Finally, the potential for abuse was ever-present in the ability of royal advisors, sycophants, and other privileged persons to obtain exclusive rights without providing anything productive in return.[97]  These factors, combined with the growth of a class of persons no longer tied to a lord for protection, but rather seeking earnestly to practice a trade, set the stage for the conflict over monopolies.

IV.       English Letters Patent and Monopoly

In 1505, Henry VII granted a charter of exclusive privileges to the Company of Merchants Adventurers of England, an organization of cloth merchants centered in several English port cities.[98]  This Company of persons, who after 1564 were known as the “Merchants Adventurers of England,” may have been the first national trading company.[99]  Beginning with the reign of Edward VI and continuing through the reign of Elizabeth, under the inspiration of their common advisor Sir Thomas Gresham, the privileges that the Hanseatic League had previously enjoyed were systematically revoked and given to the Merchants Adventurers.[100]  This action reflected growing English nationalism, corresponding to an economic policy of mercantilism. [101]  However, the fact that in 1601 John Wheeler felt compelled to issue a treatise in defense of the exclusive privileges granted to the Merchant Adventurers reveals the growth of a very different attitude among Englishmen: the hatred of monopolies.[102]

The term “monopoly” seems to have emerged in Continental European usage sometime in the Thirteenth Century, without any particular pejorative connotation attached.[103]  However, the individual who introduced the term to the English in 1516 in his Utopia, Sir Thomas More, [104] clearly associated it with the greatest imaginable evil: in 1534, in More’s Treatise Upon the Passion of Chryste, Judas is portrayed as having a monopoly in his betrayal of Christ.[105]  The negative connotation of the word “monopoly” (along with the tendency to modify words incorporated from Europe) among Englishmen is clearly reflected in its rhetorical use in Sixteenth Century political and religious discussion.[106] 

The difficulty was that the English monarchy had been deeply impressed with the possibilities inherent in a system that created financial incentives for the stimulation of domestic industry, without requiring any payment out of the royal treasury.  Between the reigns of Edward III (1327-77) and Edward VI (1547-53), therefore, royal licenses, grants of privilege, and letters patent transferring exclusive rights to practice a particular trade had greatly increased in frequency.[107]  In addition to the fact that such grants were infrequently premised upon invention, and thus granted a monopoly on a trade already practiced by Englishmen, the grants often contained self-enforcement and policing measures, which were subject to abuse.[108]  It is not surprising, therefore, that by the time of Elizabeth’s ascension to the English throne (1558) the royal monopolies were becoming a topic of passionate national debate.

The legal position of the royal monopolies was somewhat unclear.  On the one hand, the English sovereigns had consistently, and over an extended period of time, claimed the ability to grant trade monopolies as part of the parens patriae et paterfamilias (i.e. the paternal prerogative and property) of the Crown.[109]  On the other hand, the prerogative of the English Crown had arguably been limited since the time of the Magna Carta (1215).[110]  These limitations were gradually being expanded as common law courts and Parliament began to flex increasing political muscle.[111]  Thus, in 1571, an MP named Bell attempted to bring a matter before Parliament that would substitute a system of rewards for the royal patents, for which he was reprimanded by the (royally-controlled) Privy Council.[112]  In 1597, a speech was presented to Queen Elizabeth detailing the growing frustration with the royal monopoly grants, to which Elizabeth replied that “Touching the monopolies her Majesty hoped her dutiful and loving subjects would not take away her prerogative, which is the choicest flower in her garden…but would rather leave that to her disposition, promising to examine all patents and to abide the touchstone of the law.”[113]  In 1599, a court ruled that a by-law of the Society of Merchant Tailors of London, which required all members to submit cloths to cloth-workers within the Society, rather than to independent cloth-workers, was a monopoly contrary to law.[114] 

In England, the fight over monopolies was nothing less than a constitutional battle, providing an economic irritant of sufficient magnitude to motivate Parliament and the common law courts to exert their dual powers to limit the range of monarchical power.  The “Case of Monopolies,” Darcy v. Allin,[115] firmly established the power of courts to review the royal monopoly grants, and to declare them void as against the common law and acts of Parliament.[116]  The Statute of Monopolies,[117] enacted barely 22 years later (1624) directly circumscribed the royal prerogative in granting licenses, charters, letters patent, and the like, in addition to expressly providing for review of such grants by the courts.[118]  This latter Statute, by providing an exception for “letters patents and graunts of privilege for the tearme of fowerteen yeares or under” to the “first and true inventor or inventors” of “any manner of newe manufacture,”[119] established the foundation of the Anglo-American patent for invention.[120]  The controversy over the royal monopolies did not end with the enactment of the Statute of Monopolies, however, but rather constituted a significant issue during the remainder of the reign of James I (1603-1625), and extending through the reign of Charles I (1625-49).[121]  It was only once the powers of Parliament and the courts were firmly established that much of the vitriol directed at monopolies seems to have disappeared in England.[122] 

The word “monopoly,” however, continues to this day to carry, in the English language, the weight of deep ambivalence, born of the fact that it was a key trigger in a series of seismic constitutional events in English history: English lawyers, judges and legislators never quite decided whether a “monopoly” narrowly denoted the category of royal grants that were proscribed by common law, or whether it broadly described the royal grants as a whole, including the patents for “new manufactures” that were considered to be in the public interest, and thus valid under common law.  Lord Coke, who was intimately familiar with the debate relating to monopolies, having represented Edward Darcy as Attorney-General in the “Case of Monopolies,” Darcy v. Allin,[123] defined a monopoly as “an institution or allowance by the King by his grant, commission, or otherwise, to any person or persons, bodies politic or corporate, of or for the sole buying, selling, making, working, or using of anything; whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty that they had before, or hindered in their lawful trade.”[124]  This can be used to support the view that “monopolies” only include the grants proscribed by common law, those which prevent a person from exercising a freedom that he or she had before.[125]  Such a definition would not include patents for “new manufactures” or other inventions, because these do not restrain anyone from practicing a trade or exercising a freedom already practiced or possessed.[126]  On the other hand, the literal meaning of the term contained no such fine distinctions, and the law itself seemed to distinguish at times between monopolies that were “lawful” and those which were “unlawful,”[127] implying that the term itself carries no implication of illegality.  Under this view, patents for “new manufactures” and inventions are monopolies, but they are lawful because they can be argued to be in the public interest.[128]

V.        Americans, Patents and Monopoly

Quite naturally, the ambivalence and ambiguity contained in the word “monopoly” were only heightened when transmitted into the context of the American federal republic.  Justice White understandably struggled to articulate what this word, as used in the Sherman Act, could possibly mean in the absence of the monarchy that had defined it under English law.[129]  His conclusion was that the Sherman Act was intended to prohibit certain actions by individuals and organizations, often achieved through contracts, that have the same effect as a royally-granted monopoly (one of the most important being the raising of prices),[130] and that the use of the word “monopoly” in the Sherman Act, although not literally applicable to the American situation, was simply intended to capture all such possible actions.[131]  The implication of this reasoning, however, is that American patents, as exclusive rights explicitly granted by the federal sovereign, are closely related to the English “monopolies” in the historical sense of that term.  This implication is supported by the long tradition in American case-law of referring to patents as “monopolies.”[132]

And yet, the modern trend seems to be to separate “patents” from “monopolies” as much as possible, at least for purposes of the Sherman Act and American antitrust jurisprudence.[133]  Specifically, the recent tendency has been to focus on whether “monopoly power” (i.e. the power to raise prices) exists as a factual matter in any given case, consistent with the general analytical approach that has developed for cases implicating Section 2 of the Sherman Act;[134] this approach tends to ignore fine linguistic and doctrinal distinctions, in favor of a focus on economic realities.[135]  In the U.S., therefore, the essential tension seems to be between (1) a focus on the economics of “monopoly,” which offers some hope of excising the animus associated with the word itself from the patent institution, and (2) an historical and doctrinal definition of “monopoly,” which risks implicating the patent institution as one of the two types of “monopoly” recognized at least since the Fifth Century of this Era.[136] 

VI.       Conclusion

In 1995, an American commentator characterized the Twenty-first Century as an era in which “intellectual property will be more important than property in land, buildings or objects,” and “information and the means to control it, store it, and access it” will be the most important American export.[137]  In the face of such commentary, and in view of the negative connotation of the word “monopoly” in the English language, it is not surprising that policy-makers, courts and commentators would seek to avoid any association between “monopoly” and “intellectual property,” including patents.  It is in this sense that the title of this paper refers to “monopoly” as “rhetoric”: the rhetorical power of the word “monopoly” is demonstrated by the fact that, as patents and intellectual property are increasingly perceived to be economically important, courts and commentators grow reticent to concede that they may be “monopolies” in the literal, historical and doctrinal senses of that term.

However, this paper has attempted to sketch an outline of the conjoined histories of “monopoly” and “letters patent,” in order to illustrate that it is impossible to separate the two as long as we are willing to honestly examine the political, economic and etymological events that have shaped and defined these two words.  Any simplistic denial that patents are “legal monopolies” can be achieved only at the expense of history.  In such a context, it may be worthwhile to remember the words of Justice Holmes:

“Historic continuity with the past is not a duty, it is only a necessity.”[138]



Endnotes

†Laura Ford is a graduate of the Intellectual Property Law and Policy LL.M. Program at the University of Washington School of Law and a 2005-2006 Intellectual Property Fellow.

[1]   Harold G. Fox, Monopolies and Patents: A Study of the History and Future of the Patent Monopoly 190 (1947).

[2]   See, e.g.., Independent Service Organizations Antitrust Litigation, 203 F.3d 1322, 1325-28 (Fed. Cir. 2000).

[3]   Report of the Federal Trade Commission, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy (October 2003); U.S. Department of Justice and Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property (April 6, 1995), available at http://www.usdoj.gov/atr/public/guidelines/ipguide.htm#t22.

[4]   See, e.g., Einer Elhauge, Defining Better Monopolization Standards, 56 Stan. L. Rev. 253, 304 (2003) (“Patent rights do not preclude competition or guarantee monopolistic evils.  They merely provide a right to exclude others from a particular innovation.  Such patent rights often compete with other patents or methods of accomplishing the same goal, and thus may or may not enjoy any monopoly or market power.”).

[5]    See 15 U.S.C. § 2 (2004).

[6]   See, e.g., Brenner v. Manson, 383 U.S. 519, 534 (1966) (“The basic quid pro quo contemplated by the Constitution and the Congress for granting a patent monopoly is the benefit derived by the public from an invention with substantial utility.”); Universal Oil Prods. Co. v. Globe Oil & Ref. Co., 322 U.S. 471, 484 (1944) (“As a reward for inventions and to encourage their disclosure, the United States offers a seventeen-year monopoly to an inventor who refrains from keeping his invention a trade secret.”); Pennock v. Dialogue, 27 U.S. 1, 23 (1829) (“If the public were already in possession and common use of an invention fairly and without fraud, there might be sound reason for presuming, that the legislature did not intend to grant an exclusive right to any one to monopolize that which was already common.  There would be no quid pro quo – no price for the exclusive right or monopoly conferred upon the inventor for fourteen years.”).

[7]   See The Oxford Dictionary of English Etymology 586-87 (C.T. Onions, ed. 1966).  See also Fox, supra note 1, at 19.

[8]   See The History of Economic Thought: A Reader 5-12 (Steven G. Medema & Warren J. Samuels eds. 2003); Fox, supra note 1, at 19.

[9]   See Medema & Samuels, supra note 8, at 11 (Part XI).

[10]   Id.  According to Aristotle’s industrial typology, the “true and proper” arts of wealth-getting were agricultural (“knowledge of livestock” and husbandry), while the lower of such arts consisted in exchange (divided into three parts: commerce, usury (loaning money at interest) and service for hire).  An intermediate stage between the “true and proper” and the lower arts were those which “make their profits from the earth” but are also concerned with exchange, namely the “cutting of timber and mining.”  See id.

[11]   Id.

[12]   See id. at 11-12.  Aristotle’s two stories concerned “Thales the Milesian” and a man from Sicily.  See id. at 12.  Both men managed to place themselves in the position of a single seller of a commodity in high demand.  See id.  Thales, by virtue of his “skill in the stars,” possessed foreknowledge of a “great harvest of olives in the coming year,” and apparently leased all of the olive presses in Chios and Miletus at low prices, which he then subleased at high prices to the many who were in want of the presses at harvest time.  See id.  The man of Sicily was able to buy up all iron from the iron mines, by virtue of “having money deposited with him,” and thus as the only seller was able to sell the iron at high prices to the merchants who came to buy it.  See id.

[13]   See id.  Thales’ “device for getting wealth is of universal application, and is nothing but the creation of a monopoly.  It is an art often practiced by cities when they are want of money; they make a monopoly of provisions….[The man of Sicily] made the same discovery as Thales; they both contrived to create a monopoly for themselves.  And statesmen as well ought to know these things; for a state is often as much in want of money and of such devices for obtaining it as a household, or even more so; hence some public men devote themselves entirely to finance.”  Id.

[14]   Id.  According to Aristotle, when “Dionysius” learned of the man from Sicily’s use of the “art” of monopoly to earn a return of “200 per cent,” he told the Sicilian that “he might take away his money, but he must not remain at Syracuse, for he thought that the man had discovered a way of making money which was injurious to his own interests.”  Id.

[15]   See Fox, supra note 1, at 20-22.  Gaius Seutonius Tranquillus (“Seutonius”) mentions an occasion on which the Emperor Tiberias (42 B.C.E. – 37 C.E.) had occasion to use the word in the Roman Senate, which reveals the immediacy of its adoption into the Latin language:  “Though he [Tiberias] was ready and conversant with the Greek tongue, yet he did not use it everywhere; but chiefly he avoided it in the senate-house, insomuch that having occasion to employ the word monopolium (monopoly), he first begged pardon for being obliged to adopt a foreign word.”  See Seutonius Tranquillus, The Lives of the Twelve Caesars I, 226 (Alexander Thomson trans.), revised and corrected by T. Forester, available as an eBook at http://manybooks.net/authors/seutonius.html. 

[16]   When historians refer to the Roman “Empire,” they generally mean the period of extended Roman domination, beginning between 150-200 B.C.E. and extending to roughly 300 C.E.  See generally Will Durant, Caesar and Christ (Easton Press 1992) (1944).  The end of the Roman Republic, and the beginning of the monarchical Empire, generally dates from the reign of Caesar Augustus, 30 B.C.E.  See id. at 209-549.

[17]   See M. I. Finley, The Ancient Economy 28-29 (2d Updated Edition 1999) (1973); Fox, supra note 1, at 22.  Important exceptions included mineral resources (including salt), coinage, and corn/grain.  See Finley, The Ancient Economy, at 165-171; Fox, supra note 1, at 20.

[18]   See Fox, supra note 1, at 20 (citing J. E. Le Rossignol, Monopolies Past and Present 24 (1901)) (describing “royal monopolies of brick, of syenite, and of papyrus in Egypt, and of wheat and purple [dye] among the Phoenicians”).

[19]   See, e.g., A. E. R. Boak, An Ordinance of the Salt Merchants, 58 Am. J. Philology 210, 210-219 (1937) (describing an internal “ordinance” of an Egyptian salt merchants’ organization, dated in the seventh year of Claudius’ reign (47-48 C.E.), which contained provisions for, among other things, payments to be made to the state (probably in consideration of the monopoly grant), establishment of minimum prices for various grades of salt, and the allocation to various members of the sole right to sell gypsum and salt in certain specific towns, in exchange for payment to the organization). 

[20]   See Durant, supra note 16, at 498.  This connection is explicit in the dating of the Ordinance of the Salt Merchants, translated and discussed by Boak, by reference to the reign of the Emperor Claudius.  See Boak, supra note 19, at 210, 218.

[21]   See Finley, supra note 17, at 165-66; M. I. Finley, Technical Innovation and Economic Progress in the Ancient World, 18 Econ. Hist. Rev. 29, 29-45 (1965).  There are hints in various stories told by Roman writers, however, that the Emperors occasionally rewarded inventors of new arts/technologies.  See Petronius, The Satyricon, Chap. 51 (W. C. Firebaugh trans.), available as an eBook at http://manybooks.net/authors/petronius.html (telling the story of an artisan who invented a type of glass that didn’t break, and brought it to Emperor Tiberias, presumably in anticipation of a reward; unfortunately the reward received was the removal of the inventor’s head); Seutonius Tranquillus, The Lives of The Twelve Caesars, Vespasian, XVIII, (Alexander Thomson trans.), revised and corrected by T. Forester, available as an eBook at http://manybooks.net/authors/seutonius.html (Vespasian “was a great encourager of learning and the liberal arts.  He first granted to the Latin and Greek professors of rhetoric the yearly stipend of a hundred thousand sesterces each out of the exchequer.  He also bought the freedom of superior poets and artists, and gave a noble gratuity to the restorer of the Coan of Venus, and to another artist who repaired the Colossus.  Some one offering to convey some immense columns into the Capital at a small expense by a mechanical contrivance, he rewarded him very handsomely for his invention”).

[22]   See Fox, supra note 1, at 20-22.

[23]   See P. W. Duff, Personality in Roman Private Law 70-94 (Augustus M. Kelley 1971) (1938).

[24]   From the earliest periods of the Roman republic, there is evidence of organization of free workers into guilds (collegia), which were regulated by the state and served as mutual-benefit societies for the workers.  See Durant, supra note 16, at 80.  The collegia were generally modeled after the Italian municipality, with hierarchies of magistrates and favorite deities honored with temples and feasts.  See id. at 335.

[25]   See generally Duff, supra note 23.  See also Barbara H. Rosenwein, Negotiating Space: Power, Restraint, and Privileges of Immunity in Early Medieval Europe 27-28 (1999).

[26]   See The Perseus Digital Library, Greek and Roman Materials, Reference Article based on A Dictionary of Greek and Roman Antiquities (William Smith & William Wayte eds.) (1890), available at http://www.perseus.tufts.edu/cgi-bin/ptext?doc=Perseus%3Atext%3A1999.04.0063%3Aid%3Dcivitas.

[27]   See idSee also Duff, supra note 23, at 72-73.

[28]   See The Perseus Digital Library, Greek and Roman Materials, Reference Article based on Harry Thurston Peck, Harpers Dictionary of Classical Antiquities (1898), available at http://www.perseus.tufts.edu/cgi-bin/ptext?doc=Perseus%3Atext%3A1999.04.0062%3Aid%3Dmunicipium.

[29]   The origin of the word “privilege” is from the combination of the Latin privus (private) and legis (from lex, meaning law).  See The Oxford Dictionary of English Etymology 711 (C.T. Onions, ed. 1966); Rosenwein, supra note 25, at 27 n.2.  Thus the word “privilege,” according to its earliest etymological origins, means literally “private law.”  This could connote either the liberties of a citizen under private law, including commercium, or a law that is private in the sense that it applies to a particular individual or group, as opposed to Roman citizenry and/or the populace as a whole.

[30]   The origin of the word “immunity” is from the combination of the Latin in/im (not) and munis (gift or service).  See The Oxford Dictionary of English Etymology 463 (C.T. Onions, ed. 1966); Rosenwein, supra note 25, at 3-4 n.3 and 29 n.10.  The munera were services and gifts that municipes, particularly council-members (curiales), were obligated to bestow on the community, in return for monuments and public recognition.  See Duff, supra note 23, at 63.   Thus immunities were a relief from the often expensive obligations due to the municipia. The munera corresponded to the liturgies (leitourgia) owed by Greek citizens to their city-states.  See Finley, supra note 17, at 150-54.

[31]   See Duff, supra note 23, at 115. 

[32]   See Duff, supra note 23, at 129-158.  The notion that the municipality itself might be capable of “privileges” (including those of commercium) developed slowly, but had become relatively firm by the first century C.E., and at nearly the same time was extended to the collegia and corporaSee id. at 71-72, 136-37.  Thus was born the notion of “corporate capacity.”  See id.

[33]   For example, a grant of privileges by the military dictator Sulla (138-78 B.C.E.), with the consent of the Senate, to a collegia or corpora of Asian artists was memorialized, with Sulla’s permission, by a stele in a “conspicuous place.”  See Roman Civilization: Selected Readings 371 (Naphtali Lewis and  Meyer Reinhold eds. 1990).  The grant provided that the artists were to retain (despite penalties imposed on others in the area who had supported a revolt against Rome) “whatever privileges, offices, and exemptions from compulsory public services our senate, consuls, and proconsuls have given or granted you as kindnesses in honor of Dionysus, the Muses, and your profession; and that, just as in the past, you shall be exempt from all public and military service, you shall not pay any tax or contribution, you shall not be troubled by anyone for provisions or billets, and you shall not be compelled to receive any lodger in your homes against your will….”  Id. (footnotes omitted).

[34]   See Rosenwein, supra note 25, at 28 (describing the lex Antonia de Termessibus of 71 B.C., which set forth the privileges and immunities of a particular city).

[35]   See Andrew Borkowski, Textbook on Roman Law 42 (1997).

[36]   See J.H.W.G. Liebescheutz, The Decline and Fall of the Roman City 104-136 (2003); Fox, supra note 1, at 22; Durant, supra note 16, at 641-45.  In order to compel stability and to prevent massive mobility resulting from attempts to flee heavy imposed taxes, Diocletian and Constantine enacted laws to permanently fix laborers to their respective fields: agricultural laborers became serfs under law, “bound in writing” (adscriptitius) to the soil, while craftsmen and laborers, along with their progeny, were compelled to remain inside their collegia or guilds, which were in turn bound to specific trades and tasks.  See Durant, supra note 16, at 644.

[37]   See Fox, supra note 1, at 22-23.  Diocletian had reorganized the Empire by dividing it into two parts, east and west.  See Peter Stein, Roman Law in European History 22 (English version, Cambridge University Press 2003) (1999) (originally published in German as Römisches Recht und Europa (1996)).  Diocletian chose to rule the eastern portion of the Empire from Nicomedia.  See id.  The Emperor Constantine (272-337 C.E.) built the eastern capital at Byzantium (Constantinople).  See id.  As the western Empire steadily collapsed into regions of Germanic control, the eastern Empire began to assume responsibility for upholding Roman legal traditions.  See id. at 22-30.  In 476 C.E. the last Roman “emperor” relinquished his throne and the Germanic tribes in the west became formally independent of Roman control.  See id. at 29-30.

[38]   Fox, supra note 1, at 23 (quoting Thornton, Combinations in Restraint of Trade, 32).

[39]   In 528 C.E., Justinian had ordered that a new code of imperial Roman law be prepared.  See Hans Julius Wolff, Roman Law: An Historical Introduction 165 (1951).  The resultant Codex was promulgated in 529 C.E., and soon followed by the Digest (organized excerpts from writings of the classical jurists, published in 533 C.E.) and the Institutes (an educational work, based primarily on the Institutes of Gaius, published in 533 C.E.).  See id. at 164-69.  Subsequent laws promulgated by Justinian are referred to as Novellae.  See id. at 169-70.

[40]   26 Stat. 209 (1890), codified as the U.S. antitrust law, and amended, modified and supplement by subsequent legislation, at 15 U.S.C. §§ 1-37b (2005).  This preservation may be partially explained by the incorporation of the edict into the Corpus Iuris Civilis, because the latter constituted an important foundation for medieval canon (church) and civil law, which subsequently evolved into modern civilian and common law.  For a description of the evolution of western common and civil law traditions, see generally Stein, supra note 37.

[41]   See supra note 21, and accompanying text.

[42]   See supra note 21.  An additional example from the Fifth Century C.E. is contained in the Novella Theodosii.  See Wolff, supra note 39, at 158-59.  The following statement, dated 438 C.E., is attributed to Theodosius II (emperor of the eastern Empire) and Valentinian III (emperor of the western Empire):  “Often has our Grace wondered what cause has brought it about that, in the face of so many proposed prizes by which arts and studies are nourished, those are so few and so rare who are in full possession of the civil law, and that, with so much grievous paleness from nocturnal work, hardly one or the other has received the firmness of learning.”  Id.

[43]   Although there was certainly a financial component to the expressions of civic pride exemplified by the leitourgia and munera, Moses Finley makes a persuasive case that a mercantilist spirit was entirely lacking in the Ancient world.  See Finley, supra note 17, at 23, 42, 165.

[44]   See Liebeschutz, supra note 36, at 249-317; Henri Pirenne, Medieval Cities: Their Origins and the Revival of Trade 3-25 (Frank Halsey trans., 3d prtg. 1974) (1925).

[45]   See Pierenne, supra note 44, at 59.

[46]  See id. at 13-14, 60.  As a result, from the Sixth Century CE, the word civitas came to connote the center of a diocese, the “episcopal city.”  See id. at 13-14.

[47]   See id. at 60-66, 69-74.

[48]   See id. at 71-72.

[49]   See id. at 77-105. 

[50]  See id. at 77-92.

[51]   See id. at 88-92.

[52]   See id. at 93-105.

[53]   See id. at 114-119.

[54]   See id. at 106-152.

[55]   According to Will Durant, “the first mention of English guilds is in the laws of King Ine (688-726), which speak of gegildan – associates who helped one another to pay any wergild assessed against them.  The Anglo-Saxon word gild (cf. the German Geld, the English gold and yield) meant a contribution to a common fund and later the society that administered the fund.”  See Will Durant, The Age of Faith 634 (1972).

[56]   The German word “hanse” originally designated a toll levied on foreign merchants by the local merchants of a particular town or city.  See A Source Book for Medieval Economic History 217 (Roy C. Cave & Herbert H. Coulson eds., Biblo & Tannen reprint 1965).  Over time, the word came to designate the local merchant guild that levied the toll, and then the leagues of such guilds that emerged in the 13th Century.  See id.

[57]   See Pirenne, supra note 44, at 120-122.

[58]   See id. at 180-181.

[59]   See id. at 186-189.

[60]   See id. at 189-205.

[61]   See Durant, supra note 55, at 618; Fox, supra note 1, at 33-34 (“The Hanseatics for a time constituted the strongest group of alien merchants in England, and, as such, claimed the exclusive enjoyment of the privileges granted by the Carta Mercatoria of 1303.”).

[62]   See Durant, supra note 55, at 618.

[63]   See id.

[64]   See id.

[65]   See id.  Although the League was viewed at times as an oppressive force, it also earned for its merchants a reputation of integrity, which can be seen from the fact that the English word for sterling derives from the word the English gave the Hanseatic merchants, Easterlings.  See id. at 619.

[66]  See id. at 619.

[67]   See id. at 627.  The word “company” derives from the Latin conjunction of com-panis (bread-sharer).  See id.

[68]   See Jonathan Barron Baskin & Paul J. Miranti, Jr., A History of Corporate Finance 38 (1997).

[69]  See Ahmed Riahi-Belkaoui, Accounting Theory 2-3 (2000); Gary John Previts & Barbara Dubis Merino, A History of Accountancy in the United States: The Cultural Significance of Accounting 5-6, 30-31 (1998) (citing William Baxter’s analysis of development of colonial accounting as a “function of merchant specialization”).  In 1494, a Franciscan friar, Luca Pacioli, published a treatise describing these practices as they existed in Venice at that time, which came to be known as the “Italian method” or the “Method of Venice.”  See Riahi-Belkaoui, at 3. 

     Certain historians have argued that the rise of accounting is intimately connected to international trade and merchant specialization.  See Riahi-Belkaou at 1-6; Previts & Merino, at 5-6, 7-10, 30-31 (citing William Baxter’s analysis of development of colonial accounting as a “function of merchant specialization”). It is also interesting to note the argument attributed to Werner Sombart: that accounting was fundamental to the economic expansion that took place following the close of the medieval period, and to the attendant rise of modern capitalism.  This argument is premised on the idea that, by transforming assets and liabilities into abstract values and quantifying an expression of the results of business activities, accounting made it possible for economic actors to plan and measure business activities, and for ownership of property to be separated from control.  Four important points follow from this thesis.  First, that accounting contributed to a new economic goal, profit, as opposed to subsistence.  Second, that accounting, by introducing an integrated system of presenting the business’s financial position, made it possible for economic actors to behave rationally and utilize rigorous calculations to achieve desired results and plan for the future.  Third, that accounting made a new degree of financial organization possible for businesses; that its “mechanization and objectivity contributed to an orderly and continued recording of business affairs.”  Finally, that accounting made the publicly held company possible because it permitted the distinction between ownership interests (equity) from business assets, and because its standardized techniques allowed outsiders to evaluate the financial position of the business.  See Riahi-Belkaoui, at 12-14 (describing the thesis of Werner Sombart, Der Moderne Kapitalismus Vol. II (1919)).

[70]   See Baskin & Miranti, supra note 68, at 38-48.

[71]   See id. at 42-43.

[72]   See id. at 42-44.

[73]   See id. at 48.

[74]   See id.  Assuming that Baskin and Miranti are correct to assert that the Italians developed a form of “limited liability” for the corporation at this early stage, it is nevertheless true that the English did not adopt this approach until the Nineteenth Century.  See Samuel Williston, History of the Law of Business Corporations Before 1800, 2 Harv. L. Rev. 149, 160-62 (1888).

[75]   See Baskin & Miranti, supra note 68, at 48.

[76]   See Durant, supra note 55, at 627.

[77]   See Peter Jay, The Wealth of Man 93 (2000).

[78]   See id.

[79]   See Liah Greenfield, The Spirit of Capitalism: Nationalism and Economic Growth 60-61 (2001).  There was a “Hansa nation” (the Hanseatic League) as well as nations named for cities (Florentine, Milanese and Venetian) and for principalities (e.g. Aragon, Castille, Navarre).  See id.

[80]   See generally Rosenwein, supra note 25.

[81]   See id

[82]   See A Source Book for Medieval Economic History, supra note 56, at 193-211.

[83]   See Rosenwein, supra note 25, at 185.

[84]   See A Source Book for Medieval Economic History, supra note 56, at 199-200, 204 (containing translations of the “liberties” of London and its merchants, which included restrictions on the rights of foreign merchants to sell certain goods and to sell at retail, and the Charter of Henry I to the port of Rouen, which provided for, among other things, a monopoly on the right to send ships to Ireland).

[85]   See David Skillen Bogen, Privileges and Immunities: A Reference Guide to the United States Constitution 3 (2003) (quoting “an early legal reference work” defining “privileges” as “liberties and franchises granted to an office, place, towne or mannor, by the King’s great charter, letters patent, or Act of Parliament”).

According to The Oxford Dictionary of English Etymology, the term “letters patent” means an “open letter from an authority recording, enjoining, or conferring something.”  See The Oxford Dictionary of English Etymology 657 (C.T. Onions ed. 1966).  The term apparently made its way into the English language from the Old French letters patentes, which in turn likely derived from the Medieval Latin litteræ patentesSee id.  The use of the adjective “patent” with the familiar “letters” (cf. rescripta) appears to have been necessary to contrast such letters with private matters which were sealed in litteræ clausæ (“writs close”).  See Bruce W. Bugbee, Genesis of American Patent and Copyright Law 168 n.23 (1967).

[86]   The phrase “capitalist spirit” is closely associated with the work of Max Weber, who was responding to Werner Sombart’s arguments regarding the roots of the “spirit of capitalism.”  See Greenfield, supra note 79, at 10-21. 

[87]   See id. at 24-25.

[88]   See id. at 35-43.

[89]   See id.

[90]   See generally Greenfield, supra note 81. 

[91]   See Thomas Mun, England’s Treasure by Forraign Trade or the Balance of our Forraign Trade is the Rule of our Treasure (1664), reprinted in Medema & Samuels, supra note 8, at 32-44.  In fact, the characterization of “mercantilism” is complex, and it has been argued that it characterizes a period of time (“between the Middle Ages and the age of laissez-faire”) rather than the coalescence or consistency of any particular ideas.  See Greenfield, supra note 79, at 107-114 (citing and quoting Eli F. Heckscher, Mercantilism (Mendel Shapiro trans., E. F. Soderlund ed. 1955)).  However, Mark Blaug supports a limited economic definition of English “mercantilism,” at least during the early “mercantilist” period.  See Mark Blaug, Economic Theory in Retrospect 12 (5th Ed. 1996).

[92]   See Bugbee, supra note 85, at 14-30 (1967).  The phrase “importation franchises” is used by Bugbee to distinguish these grants from grants premised on invention.  See id. at 9.  For example, in 1449, Henry VI of England granted protection and a “license for life” to “undertake all legitimate arts and sciences without interference” to John Utynam, in exchange for his immigration from Flanders and his training of Englishmen in the art of making stained glass.  See id. at 14-15.

[93]   See id. at 14-30.

[94]   The Italian guilds and city-states appear to have been among the first to condition the grant of exclusive privileges on invention: according to Bruce Bugbee, the first true patent for invention was granted by Florence to Filippo Brunelleschi in 1421.  See id. at 17-19.  In 1474, the Republic of Venice enacted the first known general statute enabling the granting of exclusive rights for any “new and ingenious device” reduced to perfection in the City.  See id. at 22-23.  Whether communicated from Italy or separately developed, the practice of granting exclusive rights to new arts and inventions spread rapidly among the emerging nation-states of Western Europe.  See id. at 25-36.  Harold Fox argues that the practice traveled from Italy to the Netherlands, and from there to EnglandSee Fox, supra note 1, at 27.  William Hyde Price dates the first English patent for invention to 1561, and the first application to 1560, the latter made jointly by an Englishman and an Italian (who was presumably familiar with the Italian patent practices).  See William Hyde Price, The English Patents of Monopoly 7 (1906).

[95]   See Price, supra note 94, at 3-16.

[96]   See Greenfield, supra note 79, at 35-43.

[97]   See Price, supra note 94, at 16-17.

[98]   See Greenfield, supra note 79, at 34.

[99]   See id

[100]   See id. at 35-37.

[101]   See id

[102]   See id. at 37-41.  John Wheeler served as secretary to the Merchant Adventurers.  See id. at 37.  His treatise was entitled A Treatise of Commerce, and it defended the grant of exclusive trading privileges to the Merchant Adventurers on the bases that such a grant enabled regulation of trade, and that it would undercut the German Hansa, who, according to Wheeler, had no other aim than to “hurt and wound the State of England.”  See id. at 37-39.  Wheeler extolled the virtues of commerce that served to increase the wealth and prestige of England, and, by stressing the ambassadorial role of the Merchants in foreign lands, presented the Company as a political and economic extension of England.  See id. at 37-40.

[103]   See Fox, supra note 1, at 24.  According to Fox, the first uses were of the Latin monopolium to connote rights of sole sale granted in exchange for payment to the local sovereign, which were regarded as legitimate.  See id.

[104]   See Fox, supra note 1, at 24; The Oxford Dictionary of English Etymology 587 (C.T. Onions, ed. 1966).  See Thomas More, Utopia 10 (H.V.S. Ogden ed. and trans. 1949) (“But even if the number of sheep should increase greatly, their price is not likely to fall.  Though they are not engrossed by one person, yet they are in so few hands and these so rich that, as the owners are not pressed to sell them sooner than they have a mind to, they never sell until they have raised the price as high as possible.”).

[105]   See Fox, supra note 1, at 24.

[106]   See id. at 25 n.5.  To list some examples, in 1548, “making a money polde of offices, fees, wardes, and fermes” was one of “Diuers other crymes…layde” to the charge of an individual; in 1589, it is noted that a particular “Companie” has reduced the number of its members and become “more notable Monopoliers than they weare before”; in 1591, one Joshua Sylvester railed against the “Marchant Mercers and Monopolites”; and, in 1596, Bishop William Burlow sermonized against the “intolerable licenses of Monopoles and Solesales.”  See id.  In 1601, one Mr. Spicer, speaking in the House of Commons, formulated a philological theory of monopoly: “First, let us consider of the word Monopolie, what it is, Monos is Unus, and Polis is Civitas; so then the meaning of the word is, a restraint of any thing publick in a City or Common-Wealth, to a private use, and the User called a Monopolitan.”  Id.

[107]   See id. at 43-56.  The terms “license,” “grant,” and “patent of priviledge” seem to have been used with relative interchangeability.  See id., Appendix II (containing a reprint from D’Ewes Journal, Listing existent “monopolies” at the time of the 1601 Parliamentary debate).

[108]   See Price, supra note 94, at 4-14; Fox, supra note 1, at 64.

[109]   See Fox, supra note 1, at 57-58.

[110]   See id.  The Magna Carta provided, among other things, for uniform measures of wine, ale, corn and cloth, the freedom of merchants from unlawful seizure or tolls, and for jurisdiction in local courts for specified legal actions; and, significantly, in establishing a prohibition against imposition of “scutage or aid” without decision of “the general council of our kingdom” formed the foundation of a Parliamentary power vis-a-vis the monarchy.  See Magna Carta (1215), translated by Xavier Hildegarde (2001), available at http://www.magnacartaplus.org/magnacarta/index.htm.  See also Durant, supra note 55, at 676-677.

[111]   See Fox, supra note 1, at 57-59.  For example, during the reign of Richard II (1377-99), a statute was enacted in Parliament providing that “All merchants may buy and sell within the realm without disturbance, notwithstanding any Statutes, Ordinances, Charters, Judgments, Allowances, Customs and Usage made or suffered to the contrary, which Charters and Franchises, if any there be, they shall be utterly repealed and admitted as a thing made, used or granted against the common Profit and Oppression of the People.”  Id. at 59.

[112]   See id. at 74.  Elizabeth also signaled her disapproval by transmitting a message to the Parliament requesting that the Members “spend little time in Motions, and to avoid long Speeches.”  Id.

[113]   Id. at 74-75.

[114]   Davenant v. Hurdis (“The Merchant Tailors’ Case”), Moore K.B. 567 (1599), summarized in Fox, supra note 1, Appendix I (311-13).

[115]   11 Co. Rep. 84 b; Moore K.B. 671; Noy 173 (1602), summarized in detail in Fox, supra note 1, Appendix IV (318-26).

[116]   See id.

[117]   21 Jac. I, c. 3, reprinted in full in Fox, supra note 1, Appendix X (338-42).

[118]   See id.

[119]   Id. § VI.  An exception was also provided to permit the survival, for no longer than 21 years, of patents and grants of privilege already given to inventors of new manufactures.  Id. § V.

[120]   See generally Fox, supra note 1.  Fox was of the opinion, however, that the Statute of Monopolies only constituted a “declaration of what the common law had always been.”  Id. at 125

[121]   See id. at 127-39.

[122]   See id. at 153-58.

[123]   11 Co. Rep. 84 b; Moore K.B. 671; Noy 173 (1602), summarized in detail in Fox, supra note 1, Appendix IV (318-26).

[124]   3 Inst. 181, as quoted in Standard Oil Co. v. United States, 221 U.S. 1, 51 (1911) (emphasis added).

[125]   See Fox, supra note 1, at 162,

[126]   See id.

[127]   For example, in 1640, during the “Long Parliament,” a provision was proposed in the House of Lords prohibiting any “Monopolist” from serving as a Member in the House.  See id. at 141.  However, when this provision was addressed by the House in a motion, it was resolved to add the word “unlawful” in front of “Monopolist.”  See id.  Fox uses this example to support his contention that “monopolies were not, per se, regarded as unlawful.  The agitation occurring all through this period was not against all monopolies, many of which entirely escaped criticism, but only against those which offended the law.”  Id.

[128]   The essence of this argument is expressed, albeit confusingly, by Judge Withins, as quoted in East India Co. v. Sandys, 10 St. Tr. 371 (1648), excerpted in Fox, supra note 1, Appendix XVI: “a monopoly is no immoral act, but only against the politic part of our law; which if it happened to be of advantage to the public, as this trade is; then it ceases also to be against the prohibiting part of the law, and so not within the law of Monopolies.” 

[129]   See Standard Oil Co. v. United States, 221 U.S. 1, 49-63 (1911)

[130]   Justice White concluded that under English precedents, a monopoly could only arise through a grant of the king.  See id. at 53-54 (quoting from East India Co. v. Sandys, 10 St. Tr. 371 (1648) the statement by Pollexfen that “the common law is as much against monopoly as engrossing; and that they differ only that a monopoly is by patent from the King, the other is by the act of the subject between party and party; but that the mischiefs are the same from both, and there is the same law against both.”).  However, he read the English common law as moving to equate means and ends, such that “restraints of trade” (including engrossing) came to be equated with “monopoly” because the effects of the two were the same.  See id.  He concluded that the same thing had happened in America.  See id. at 56 (“In this country also the acts from which it was deemed there resulted a part, if not all, of the injurious consequences ascribed to monopoly, came to be referred to as a monopoly itself.  In other words, here as had been the case in England, practical common sense caused attention to be concentrated not upon the theoretically correct name to be given to the condition or acts which gave rise to a harmful result, but to the result itself and to the remedying of the evils which it produced.”)

[131]   See id.  “And a consideration of the 2d section [of the Sherman Act] serves to establish that it was intended to supplement the 1st, and to make sure that by no possible guise could the public policy embodied in the 1st section be frustrated or evaded….In other words, having by the 1st section forbidden all means of monopolizing trade, that is, unduly restraining it by means of every contract, combination, etc., the 2d section seeks, if possible, to make the prohibitions of the act all the more complete and perfect by embracing all attempts to reach the end prohibited by the 1st section.”  Id. at 60-62.

[132]   See supra note 6.

[133]   See Executive Summary, Report of the Federal Trade Commission, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy (October 2003), available at http://www.ftc.gov/opp/intellect/index.htm (citing with approval Robert L. Harmon, Patents and the Federal Circuit § 1.4(b) at 21 (5th ed. 2001) (“Patent rights are not legal monopolies in the antitrust sense of the word.”)).

[134]   See U.S. Department of Justice & The Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property §2.2 (April 6, 1995), available at http://www.usdoj.gov/atr/public/guidelines/ipguide.htm#t22.

[135]   Some cases go even further, holding that the antitrust laws (and the Sherman Act) only limit the exercise of rights under a patent where the party in opposition to the patent-holder can prove illegal tying, fraud committed in the Patent and Trademark Office to obtain the patent, or sham litigation to enforce the patent.  See Independent Service Organizations Antitrust Litigation, 203 F.3d 1322, 1325-28 (Fed. Cir. 2000).

[136]   See supra notes 38-39, and accompanying text.

[137]   See J. Thomas McCarthy, Intellectual Property – America’s Overlooked Export, 20 U. Dayton L. Rev. 809, 818 (1995)

[138]   Oliver Wendell Holmes, Jr., Collected Legal Papers 138 (1920) (quoted in Fox, supra note 1, at 191 n.5).

Last updated 4/27/2012