By the Order of Kalakaua Rex: The Patent Laws of the Hawaiian Kingdom

Dr. Jon Platt

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The independent Hawaiian kingdom existed less than a century, coming to an end with a coup in 1893, and a subsequent annexation of the Hawaiian Islands by the United States in 1898. But that does not mean that the Hawaiian kingdom lacked its own intellectual property laws, including a system of patent protection.

The original Hawaiian patent laws were enacted in 1884. They were based on parts of the U.S. patent laws of 1870, but with some changes. Instead of the U.S. patent term of seventeen years, the patent term of Hawaiian patents was fixed at ten years. And the grace period was only one year for public use in the Hawaiian Islands if a patent was already obtained in a foreign country, as opposed to the two-year grace period that was then the norm under U.S. patent laws. Further, the Hawaiian patent laws included no best mode requirement.

In 1888 the Hawaiian patent laws were revised, to incorporate further aspects similar to U.S. law, including written rejections to patent applicants, with a right to appeal the rejections to Hawaii’s Supreme Court. A cause of action for recovery of damages for patent infringement was also provided. It is notable that these revisions were approved in the name of King Kalakaua by Minister of Interior Lorrin A. Thurston, who by then had seized much power under the 1887 “Bayonet Constitution” that was authored by him, and signed by King Kalakaua under threat of force.

Like the U.S. system, the Hawaiian patent system also had a set of rules of practice. These appear to be based on the 1871 U.S. Patent Office Rules of Practice. The rules are undated, but must have been issued late in the 1880s, after the Bayonet Constitution, since they were issued jointly by Lorrin Thurston, and by Jonathan Austin, the (perhaps only?) Hawaiian Commissioner of Patents. According to his Wikipedia entry, Jonathan Austin was the President of the Paukaa Sugar Company and was also the Miniter of Foreign Affairs at the time. The cabinet of which he was a member was replaced in 1890, after which Austin left for San Francisco, to eventually return to the islands before his death in Honolulu in 1892.

It’s unclear if Hawaii ever set up a functioning patent office as an independent nation, or if it ever issued any patents, but its patent (and copyright and trademark) laws enacted during its independence serve as a sign of the usefulness of such laws for a modern economy.