Rex vs Arkwright, 1785: A judgment for patents as information

Two hundred years ago, in June 1785, a case was heard in the English High Court that was to prove a major influence upon the evolution of patents as information. Rex vs Arkwright was the hearing in which a patent granted to Richard Arkwright, the well known inventor of cotton spinning machinery, was challenged for lack of an adequate specification and was annulled. An exhibition was held in London in the summer of 1985 at the Science Reference Library -- formerly the library of the British Patent Office -- to mark the bicentenary of the case. The following account of the background, circumstances and influence of Rex vs Arkwright derives largely from the writer's participation in the exhibition of the same name. Sometime early in 1785 the office of the sheriff of Middlesex served on Richard Arkwright a writ of scire facias, which began the process of annulment that removed the protection of patents from his invention of cotton processing machinery. In the portentous language of the English courts, it charged: That the said Richard Arkwright hath not, in and by the said instrument in writing so by him enrolled in our High Court of Chancery, particularly described and ascertained the nature of his said invention ... but hath wholly neglected to do so, contrary to the form and effect of the said letters patent ... The instrument scire facias was not often used against patents, which were more frequently lost because the patentees could not defend them in private litigation. However, it was the subject's means of direct assault upon a patent considered indefensible: what the Crown had granted only the Crown could formally cancel, and the first step was to persuade the Law Officers that there was a case for this writ. Rex vs Arkwright came to the Court of King's Bench on 25 June, 1785. The case has a curious and very special place in English patent law. It is best known of all early cases in a formative period in the evolution of the English patent system, the end of the eighteenth century and the beginning of our industrial revolution. Despite its antiquity it is often cited in English courts today. Yet it was not a leading case in the true sense; when the judge, Francis Buller, summed up against the novelty of Arkwright's patents, and more strongly against his failure to disclose them, he enunciated a definition in law already familiar to his fellow judges, if not to the patentees themselves. Closely studied, and regrettably Rex vs Arkwright has been more often cited than studied with the attention it deserves, its influence is not so surprising. There was a certain mystique associated with Arkwright the inventor and manufacturer. It was sixteen years since his technical breakthrough of 1769, and his patent for the spinning frame embodying methods already unsuccessfully tried by Wyatt, Paul, Kay and Highs (Fig. 2). His early Nottingham partnership was soon followed (1772-1775) by the establishment of his mills at Cromford in Derbyshire in association with the Strutts. As contemporary references in literature and the visual arts show, his invention had a powerful impact on the popular mind. Arkwright had created not only the means of mass production in a staple industry but had accelerated change in what today we would term the infrastructure and social organisation. His influence was soon to travel to Europe and across the Atlantic. The textile industry was growing rapidly in wealth and importance and competition to innovate was so fierce that inventor's rights were constantly threatened, despite the existing patent system. Rex vs Arkwright resulted from the concerted action of an association of manufacturers in Manchester, not from that of an individual. Though the economic effect of patents is hard to assess, most authorities have agreed that the outcome of the trial had a significant effect on the growth of the cotton industry. The impact of Arkwright's fall was in proportion to his stature. Another factor in the lasting influence of this case is its documentation. Anyone familiar with manuals of patent law will know that the early English cases are often a patchwork of partial reports compiled from newspapers or from later allusions in court records. Pamphleteers also played a part in the aftermath of the Arkwright hearings. Full reporting of patent litigation in England did not arrive until the late nineteenth century. Arkwright's patents involved three hearings before special juries in the courts of common law and for two of these there are verbatim transcripts -- an unusual situation that shows the popular and professional interest they aroused. Even today, Rex vs Arkwright is known mainly from the excerpts in Webster's and other published series, not from original sources(1, 2). The full reports have never been reprinted and are known from only a few surviving copies. Both Crown and defendant marshalled powerful arrays of counsel and expert witnesses, so the transcripts of the actual hearings are exceptional also for their substance. Their legal rather than their general historical interest is of most concern here. Arkwright's patent was attacked on a very broad front -- indeed, on all the possible grounds written into the grant at the time: that the invention was not orginal, not Arkwright's own, was not properly disclosed, and was 'prejudicial and inconvenient to His Majesty's subjects in general'. So all aspects were debated and redefined by eminent counsel and by the judge, resulting in definitions some of which echo in posterity. The three Arkwright hearings are like three acts in a drama about the priciples of patents. The case is most often recalled and cited in connection with disclosure and the central importance of the specification as a vehicle of information. In Britain, the specification had its germ in the Middle Ages in the fairly obvious need for the details of a grant to be clearly on record. The separate specification lodged after the grant evolved in this country in the early eighteenth century, to satisfy the conflicting demands of the Crown (for disclosure) and of the patentee (for secrecy) until the grant was actually sealed. By 1734, the practice had become standardised; the undertaking to 'particularly describe and ascertain' the nature of the invention and the 'manner in which the same was to be performed' being written into the grant, with a clause stating that failure by the applicant to do so would annul it. At first the requirement was not strictly observed on either side, but during the third and last quarter of the century historians have detected a change, usually ascribed to the decisions of a Lord Chief Justice, Lord Mansfield, toward a stricter interpretation. The function of disclosure in 'teaching the art' for the public good was by then well established (3, 4), but now it came nearer the modern doctrine of 'best description' (5): in Judge Buller's words during Rex vs Arkwright, 'it must put the public in possession of the secret in as ample and beneficial way as the patentee himself uses it'. The adversary process in the courts must have contributed to the change. As inventions became more numerous and complex, the specification was as important to the patentee as to other inventors. Although Rex vs Arkwright manifested the operation of a principle now seen as fundamental to the patent system worldwide, this was not always how contemporaries of Arkwright, and especially his fellow inventors, saw it. To many of them it was as instance of the way powerful pressure groups could see the law to deprive the inventor of his just reward. To them it emphasised the shortcomings in the administration of the system, which had not developed in step with the law. After Rex vs Arkwright, a common interest in reform brought together personalities as different as James Watt and (in Watt's words) that 'self sufficient, ignorant man' Richard Arkwright. Watt's alarm at the verdict is well known; his own legal battles for his steam engine patents are a striking parallel to Arkwright's, except that he succeeded where Arkwright had failed. This was a time of inventive ferment when, in Watt's words, 'one's thoughts seem to be stolen before one speaks them. It looks as if Nature had taken up an adversion to monopolies ' (6) Where was the statutory authority for specifications, he argued, and why were deficient ones passed by the law officers? The form of an adequate specification could not be the same for all inventions; his own highly 'philosophical' and abstract specification for the separate condenser was validated in court several years after Arkwright's downfall in the same chamber. Watt's cogent proposals for patent reform were not realised until more than half a century later, and then only imperfectly; as regards professional examination of patent applications it was a century later. Modern court experience would probably show that the pitfalls attendant on disclosure still exist. Arkwright's defence of his patents lasted four years and, as mentioned, involved three hearings as well as a final appeal. Some aspects of this sequence of events are still puzzling. He had taken out two patents, the first (1769) was for the celebrated spinning frame; it was adequately disclosed and was never directly challenged in court. The disputed (1775) patent was for machinery for 'preparing silk, cotton, flax or wool for spinning', i.e. for carding and roving (Fig. 3). Its specification illustrated and decribed only disconnected details, some relevant and some actually misleading. For successful exploitation the inventions were interdependent: as he expressed it in a petition for prolongation of the spinning patent in 1782, the second was founded 'in some measure on the Principles of the first Machine ... these inventions, united completed his great original plan' (7). (The common principle was, of course, the famous roller drawing, used in all the processes other than carding proper.) Patents were anathema to many in the northern textile community and Arkwright's licensees were few compared to those who defied the patents and copied his machines. In July, 1781 he sued for infringement ten of those who had formed 'an Association of the very Persons who he had served and obliged'. The case was heard in the King's Bench before Mansfield, architect of the doctrine of disclosure. Arkwright evidently chose the ground of the second, carding patent rather than the first which had not long run to run. Nor formal report exists, but the defense, a formidable duo of a then young but later prominent counsel, Edward Bearcroft, and Thomas Erskine, produced sufficient evidence of non-disclosure for the case against the first defendant, Colonel Mordaunt, to break down. A year later appeared Arkwright's pamphlet plea for extension of the first patent. This failed, after a counterpetition from the manufacturers. So for three years, he and his licensees were unprotected, but late in 1748 he tried again to reinstate his defective but unexpired second patent by suing a neighbour -- and even, it seems, business associate -- Peter Nightingale, for infringement and enticement of workmen. Arkwright vs Nightingale was heard in the Court of Common Pleas in February 1785, before Lord Loughborough. It was a more straightforward case than the culminating one; issues of novelty were raised but the defense rested on the specification and judge summed up in its favour. The criterion applied has been used in earlier cases: whether a workman experienced in the 'art' could make the machine from the description. Arkwright's witnesses, James Watt, Samuel More and Erasmus Darwin, proved the more convicting. Yet this specification was certainly no example of 'best description' and Arkwright's success surprised the association of Manchester manufacturers and is still somewhat surprising. One aspect of the case deserves mention: it now seems certain that it was, in fact, redundant, and something of an injustice to both parties, because the proceedings leading to Rex vs Arkwright had already commenced by the time of the Nightingale case in February. Thus it decided nothing for long, and Arkwright's patents were placed in double jeopardy. How this happened perhaps only the Chancery officials of the time could have explained. Actions by scire facias began by application to a Chancery department called the Petty Bag Office. The minor but not uninteresting question of who applied for the writ remains a mystery. In one nineteenth century history of Manchester, members of the association of manufacturers are listed by name, but no confirming evidence has so far been found in the public records (8). The Crown proceedings have left documentary traces, but the prime mover against Arkwright remains unknown. Rex vs Arkwright was heard on Saturday, 25 June, 1785, in the Court of King's Bench, in Westminster Hall, before Francis Buller. It began at nine in the morning, and lasted well into the night -- expeditious, by modern standards. It differed from the earlier hearings mainly in its threefold attack on the patent, and in the greater number of witnesses from the textile industry brought to prove lack of novelty. (The evidence of some of these artisans has provided material for much later controversy as to Arkwright's status as inventor.) It is not surprising that Buller's summing up concerning novelty is less cogent than his treatment of disclosure. Even now details of Arkwright's machinery are a matter of speculation, so the judge's task was difficult. Wives and sons of inventors were marshalled for the Crown side as well as defecting employees of Arkwright's, providing courtroom drama. Few aspects of patents were not touched on by counsel. Bearcroft for the Crown and Sergeant Adair for Arkwright. In particular, such questions as the patentability of additions, and of new applications of old principles, were dealt with. (The evidence of some six witnesses was heard on Arkwright's use of a crank for removing carded cotton from the cylinder.) On the instrument of disclosure, the specification, Buller was positive: 'It is not that fair, full, true discovery which the public has a right to demand ...' . This was the judgment that James Watt and others saw as legalistic, rather than just. At the conclusion of the hearing, the jury, either from conviction or exhaustion, did not even retire before giving their verdict for the Crown. So the Crown's case against Richard Arkwright passed into history and the law books. The full transcript of the proceedings is out of print and rare, yet in practice it is still cited on occasion in the British courts, particularly in connection with the requirement of 'best description' -- though Buller did not actually use that phrase. In the United Kingdom, the decision in Rex vs Arkwright was influential in defining information as a function of the British concept of patenting. Whether it also provided a lead that other countries followed is an interesting speculation still to be pursued.