The First Patent Act?

June 24, 2011 at 3:30 pm Leave a comment

While searching for health-related legislation in Upper Canada, I came across this 1826 statute (7 Geo IV, c 5) that is likely to be the first patent/intellectual property legislation enacted for British North America (it appears a similar statute was enacted for Lower Canada two years later, in the ninth year of the reign of George IV). Interestingly, the definition of ‘invention’ hasn’t changed much since that time: to qualify for a patent, an invention must be a “new and useful art, machine, manufacture, or composition of matter, not known or used before the application [for a patent]” (cf. Patent Act definition; the 1826 definition was probably derived from common law doctrine). Here are other interesting features of the statute:

  • The maximum term of exclusivity granted was 14 years.
  • A patent can be obtained on an improvement (which is not defined, although it is stated that “simply changing the form or the proportion of any machine or composition in any degree, shall not be deemed a discovery). However, patents on improvements do not extend to the original invention and vice versa.
  • An applicant for a patent was required to swear an oath or—if a Quaker, Menonist, Tunker, or a member of the United Brethren or Moravians—affirm before a justice of the peace that he/she is the true inventor of the discovery for which a patent is sought (Is this a case of religious accommodation or based on the notion that a [biblical] oath by anabaptists is worthless? Is it curious that Catholics are not included in this list?).
  • Competing patent applications were to be settled by arbitration.
  • The application procedure seems fairly onerous: an applicant was required to submit a written statement describing the invention or improvement in detail, accompanied (if necessary) with drawings, models and written references, and signed by two witnesses.

Entry filed under: Upper and Lower Canada History. Tags: , , , .

Health Law in Lower and Upper Canada, 1791-1841 “Health” and the Distribution of Legislative Powers in the BNA Act, 1867

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Reflections on health law and policy in early Canadian history


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