If you ask, most people can cite a day, which, to them anyway, changed the world. It may be the start or end of a war; the beginning or end of an administration; a specific piece of legislation; a birth or death; etc. Well, how about April 10, 1790? To patent folks the earth shook, the heavens opened, and history forever altered. This was the day the first version of the U.S. patent act was signed. It was the third Act of Congress.
The fun facts, previously related in For Whom the Bell Tolls, are that this legislation was specifically singled out by George Washington as legislation that the Congress ought to pass to help the young country get going. The law itself was written by Thomas Jefferson; the basis for the law being inserted and written into the Constitution by James Madison. We know these actors for other events and roles: President(s); General; writers of Declaration of Independence and Constitution; land buyer, etc. But, none played as big a role, perhaps unwittingly, as they did in setting this country on a course to be the “land of tomorrow” and thusly to inspire all those who would ultimately invent the elements that would make up that tomorrow.
It is ironic that Jefferson, especially, played the “father of the patent system” role that he did. He was opposed to the potential embarrassment of this new country handing out patents. They had a bad reputation. You see, patents had, until then, been primarily the province of crony capitalism and scientific peers. It would take a relatively wealthy person to pursue what a patent had to offer and, as a result, they were not given out very often or to very many. On the crony capitalism side, the Crown would give monopoly rights in land or business pursuits to those who could advantage themselves and their business groups by using what the monopoly had to offer. As for scientific or industrial creation: it required, then as now, access to capital, to pursue or make whatever the patent covered post invention and application.
Happily though, Madison, through a series of letters back and forth between Jefferson, who was in France helping Ben Franklin secure French support for the nascent US revolution, persuaded Jefferson that a limited monopoly on an inventor’s own creations was a good idea. It was, even, a necessary idea inasmuch as the U.S. needed to capture the ambition of those who had skills to come to the U.S. and exploit those skills and spread that knowledge throughout the new country.
The U.S. patent law changed the basic underpinnings of previously existing patent systems. It was cheap and wide open. Conceptually, it was a revelation of enlightened thinking. A person could privately own the results of their intellectual pursuits. The first patent, reviewed by Jefferson, and signed by Washington, was to a method of making ingredients for soap. Jefferson was eventually overwhelmed by the job of patent examiner (sound familiar) and asked for a different system with less examination. But, eventually, by 1836, the system had matured into something like what it is today. An examination based system, with systematic publication and organization of documents for use by others to bolster their own knowledge of the technical topics covered.
The U.S. rapidly gained ground on, and overtook, every other economy in the world to become, by the end of the 1800’s the preeminent economy. By the 1950’s, about 50% of the world’s GDP was being created (in the U.S.) by about 5% of its population. Arguments can be made about the factors that contributed to this juggernaut of innovation and progress, but a factor cited by many who have studied the process, is the U.S. patent system. When Korekiyo Takahashi (Envoy from Japan) visited the U.S. in the late 1800’s, he surmised the secret to the technological success of the U.S. was its patent system, and promptly revamped the Japanese patent system to mimic that of the U.S. Until then the Japanese patent system had been modeled on the French system.
Hence, we should celebrate the advent and extension of our own patent laws. It seems to me that the greater their scope the greater the likelihood of them being a force of discovery and innovation across all disciplines. Every other country on earth that hews, economically, towards the path taken by the U.S., implements a patent system of some sort. The most recent and memorable (inasmuch as I wrote a speech for its inauguration, given by then Commissioner Quigg) was the Chinese patent system. China launched its patent system in the mid 1980’s; and, now the country is home to the one of the largest and most productive economies in the world.
Despite mountains of plain evidence of the worth and contribution of such a set of innovation promoting parameters, the present sense is that some industries are financing and lobbying their way to have the U.S. “opt out” of patents. The rationale is: “It may be good for others, but not our specific business.” Really? The capital raised and spent in the specific industries crying foul does not reveal a business sector that seems to be suffering in any way at all; it includes the most highly capitalized businesses on planet earth.
Recent legislation, the AIA, has created a permanent “patent pending” status where being dragged back to the PTO to have your patent publically flogged and taken from you is your reward for innovating and disclosing and passing through an examination. Proposed legislation seeks to further this disassembly of our system. (See, again, For Whom the Bell Tolls for my thoughts on this awful legislative proposal.) Is this truly in the interest of the country, as a whole, or in the narrow and short sighted interest of a well-financed few? Hopefully, the collective wisdom of Washington, Jefferson, Madison, and Lincoln can be put back to work to lead the U.S., again, to create the “land of tomorrow” through innovation.
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10 comments so far.
John WhiteApril 13, 2015 03:11 pm
Paul: well said.
Paul MorinvilleApril 11, 2015 04:24 pm
The Patent Act of 1790, only the third Act of Congress, granted patents to “he, she, or they” at a cost that even a pauper could afford. This was a major change from the English system. It meant that at a time when women and African Americans could scarcely own property, both could own patents… and both did. In 1809, Mary Kies became the first woman patentee for her invention related to weaving straw hats. In 1821, Thomas L. Jennings became the first African American patentee by inventing a method of dry scouring clothes. Granville Woods, the “Black Edison”, patented dozens of railroad related inventions in the late 19th century.
During the 1800’s, some 3,300 women patented 4,196 inventions and many made their full living by licensing their inventions. The U.S. patent system was the first equal opportunity law leveling the field for all regardless of race, gender or economic status.
Now our courts, our congress and our administration are throwing the patent system off the bridge in an effort to smash a fictitious and undefined “patent troll”. No one benefits from this except large multinationals like Google, so it is not surprising that Google is hurling millions of dollars at congress and the administration.
If we let them succeed, we will go down as the generation who allowed the greatest blunder in our history.
JApril 11, 2015 12:38 am
I think it was the 1793 act that Thomas Jefferson “wrote,” though historian Waltersheid disputes that he actually wrote the act. Jefferson supported the amendment to the 1790 law because the 1790 law required Jefferson, and other cabinet members, to personally approve patent applications. The extent that Jefferson liked the idea of a patent system is also disputed.
But I’d be interested in seeing those letters, because I’ve never heard of them and might change my mind about things.
American CowboyApril 10, 2015 02:24 pm
Here in Abilene, we don’t have a statute of monopolies, but we do a have a legislated state monopoly on erecting likenesses of people.
We call it the State Statue Statute.
Gene QuinnApril 10, 2015 11:28 am
There are historians that would disagree with your rosy interpretation of the Statute of Monopolies. In fact, it is believed by at least some historians that the Statute of Monopolies merely codified the existing common law at the time and did little or nothing to reign in the royal prerogative.
You may disagree with the premise or the title, but the widely held understanding is that the Patent Act of 1790 changed the course of patent law, not just in the US, but around the world. For the first time the patent system was accessible to the common person. Contrast that with the UK system which was dominated only by the wealthy and businesses. There was simply no way an average person could afford to partake in the UK patent system. That is fact.
Finally, whether the Constitution or the Patent Act of 1790 have words in common with the Statute of Monopolies entirely misses the point. The Patent Act of 1790 was a turning point in the history of patent law, and with respect to incentivizing innovation. That is why Abraham Lincoln ranked the US patent system as one of the 3 greatest innovations of all time.
AnonApril 10, 2015 11:04 am
Darren and his brother Darren (the other Anon – in my poor attempt at an impression of Bob Newhart),
I will side with Gene and John.
Yes, while the title and introduction contrast with a wider ambit, as it were, the focus is indeed on the singular advance of the US approach.
Perhaps a point can be made concerning the better coverage of the transition afforded the Statute of Monopolies, but that in no manner detracts from the focus of the article.
For example, even after the Statute was passed in 1624, the English still abused the system by way of the monarch’s control of the courts (vis a vis Charles I). Even as the restoration tended to finally put an end to the abuse, the US system was indeed notable for its purposeful attempt to make the right one that was both personal and fully alienable.
It is perhaps this wrinkle that I would have added to John’s narrative. By making the patent right much more aligned with personal property, the buying and selling of that property allowed for inventors to invent – and then sell the rights to others who who monetize it according to their own separate abilities. I would expressly note that this behavior today is often lambasted (can you say “Troll?”), and yet this was a foundational aspect and part and parcel of the advance of the US system.
I would probably also add the historical notions that those advances that other country’s shunned from patent protection and which found homes here in the US (biotech and software) were amply rewarded with far more innovation – and fruits of that innovation – here in this country. When one also considers the advances afforded by the Bayh-Dole Act as another indicator of the benefits of a strong patent system, one can only wonder why we would ever want to weaken it.
Which is the critical point that I see in John’s article.
Darren SmythApril 10, 2015 10:38 am
I respectfully agree with Anon. You state that the article is about the US patent system, but the title and introduction give it a much wider ambit than that. Moreover, the Statute of Monopolies is NOT discussed. What is stated in the article “the Crown would give monopoly rights in land or business pursuits to those who could advantage themselves and their business groups by using what the monopoly had to offer” appears to describe the situation BEFORE the Stature of Monopolies, and had been abolished by the Statute of Monopolies, to be replaced by patents based on invention, about 150 years before the US Act of 1790.
The omission, or possible misunderstanding, of the Statute of Monopolies is odd given that the corresponding provision of the US Constitution has wording which is so closely based on it.
Gene QuinnApril 10, 2015 10:11 am
Anon (who is not our regular friend Anon)-
I think your criticism is unfair. First, the article is about the US patent system, not about the Venetian patent system. Second, the Venetian patent system has not contributed to advancement of science and technology to the extent the US patent system has. Third, the article does mention the UK Statute of Monopolies. If you actually read the article John discusses how the Crown (i.e, the King of England) would give patent rights to businesses, which created the ultimate form of cronyism.
So, it seems that you were hoping to read a different article, which is hardly a fair criticism of the article written.
AnonApril 10, 2015 05:20 am
Interesting, but it ignores its distinguished forbears, the Venetian Patent Statute of 1474 (the world’s first true patents act, and still remarkably up to date):
and the UK’s Statute of Monopolies of 1624, which killed the Royal grants of privilege to the Monarch’s buddies and restricted patents to “any manner of new manufacture”.
angry dudeApril 9, 2015 02:32 pm
“…the very first official thing I did, in my administration—and it was on the very first day of it, too—was to start a patent office; for I knew that a country without a patent office and good patent laws was just a crab, and couldn’t travel any way but sideways or backways.”
“A Connecticut Yankee In King Arthur’s Court” by Mark Twain