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The Effect of the American Patent System on Invention A Historiographic Review

The E ect of the American Patent System on Invention: A Historiographic Review
Michael D. Ernst December 12, 1990

Often acrimonious debates over the United States patent syst

em have raged since soon after it was established in 1790. Despite several revampings, its critics have continued to make their voices heard, while supporters defend its role in the American research and economic community. The chief question has been whether the system is a force for good or ill: does it promote progress by encouraging and rewarding innovation, or does it hinder advancement by granting monopolies where none are warranted? The United States Constitution states, \The Congress shall have Power To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."1 Patents are a form of bribery: the inventor is given a monopoly over his invention in return for fully disclosing it so that all of society may pro t from it. This conception of patents is very di erent from the European one, where patent rights are often viewed as natural rights; in America, social utility is the nal motivation. The Congress is free to revoke the patent and copyright acts, if it feels they are not e ectively promoting the progress of science and technology (the \useful Arts"). There are numerous other points of departure of the American patent system from the British one, on which it is based; these have presented analysts|from industrialists and economists to political scientists and historians|with a unique set of problems and issues with which to grapple.2 This paper will survey and analyze historians' attitudes toward the patent system. While its main focus will be on the e ect of the patent system on invention|was it encouraged, discouraged, or una ected by patent policies?|it is impossible to divorce issues of development from those of research.3 The use and abuse of patents, economic and other motivations for research by individuals and corporate entities, the history of the patent system, and a few other topics intimately related to the interface between intellectual property law and invention will also necessarily be touched upon; this study would be not just incomplete but misleading without these references. While many texts remark on how patents were used, few investigate the e ects of such use or speculate on what might have been, had the laws been di erent. For this reason most authors' opinions of the e ect of the patent system on invention, in the past and present, must be determined through their tone and choice of facts. The paper will begin with a brief history of the patent system, focusing on public attitudes toward it; next historians' viewpoints will be explicated and explanations sought for these attitudes and for the changes in them; and nally the historians' analyses will be critiqued and the author's synthesis stated.4

The Constitution of the United States of America, 1787, Article I, Section 8. The American system permits patenting of much that would be unpatentable in Europe because of its triviality or obviousness; it also does not mandate the working or license of patents. David A. Hounshell and John Kenly Smith, Jr, Science and Corporate Strategy: Du Pont R&D, 1902{1980, Studies in economic history and policy: The United States in the twentieth century (Cambridge: Cambridge University Press, 1988), p. 201. 3 Historians bemoan their inability to do so despite their best e orts. John Jewkes, David Sawers, and Richard Stillerman, The Sources of Invention, second edition (London: Macmilian, 1969), p. 152. 4 It is inevitable that this viewpoint, which is elucidated on page 15, has tinted the interpretation of these writings, which were formative in its creation; nevertheless, objectivity will be striven for.
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A Chronology of the U.S. Patent System
On April 10, 1790, three years after the rati cation of the Constitution, which gave Congress the discretion to establish a national patent system, it was legislated into existence, primarily because of the pressure of steamboat claims arising from the Fitch-Ramsey competition.5 Each patent application was examined by the Secretary of State, the Attorney General, and the Secretary of War.6 Led by Thomas Je erson, these examiners set high standards of novelty.7 Despite their diligence, the three cabinet members were soon relieved of their duties due to their burdensome nature (or because of their stringency in granting patents|only three were given the rst year8). In 1793 a new system of registration was initiated. For the next 43 years applicants had only to le the proper paperwork and remit their fees in order to be granted a patent. In the case of patent suits or priority claims, the courts were left to sort out the often considerable mess.9 This registration system encouraged derivative inventions and minor modi cations,10 but the Patent O ce's recommendations to withhold letters patent were rarely upheld and a spirit of laxity prevailed.11 There was a widespread belief| enunciated by thinkers such as Jeremy Bentham and John Stuart Mill as well as by others in all walks of life|that inventions would cease if the patent system was abandoned.12 Indeed, while the patent o ce languished, inventors were as active as ever. But by 1836 public opinion had shifted,13 and a stronger patent o ce seemed an obvious necessity rather than part of a dangerous scheme of unconstitutional centralization.14 In that year the patent o ce began to examine applications and test demonstration
David P. Billington and Alfonso M. Albano, Episodes in American Invention: the Steamboat and the Telegraph, Monograph Series of the New Liberal Arts Program (MIT Press and McGraw Hill, 1990), p. 9.
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H. N. Scheiber, \The Impact of Technology on American Legal Development, 1790{1985", in J. Colton and S. Bruchey, editors, Technology, the Economy, and Society, pages 83{125 (New York: Columbia University Press, 1987), p. 85. 7 This would not be the rst time that examiners were accused of prejudice because of their superior learning (see below), but another explanation may be found in Je erson's agrarian inclination: since he considered working with machinery dangerous to the human soul (M. Roe Smith, \Technology, Industrialization, and the Idea of Progress in America," in K. Byrne, editor, Responsible Science: The Impact of Technology on Society, pages 1{30 (San Francisco: Harper & Row, 1986), p. 3) he may have been less than eager to encourage American industry. 8 Henry M. Paynter, \The First U.S. Patent", American Heritage of Invention & Technology, 5(3):18{22, Fall 1990. 9 Robert C. Post, Physics, Patents, and Politics: a Biography of Charles Grafton Page (New York: Science History Publications, 1976), p. 48. 10Scheiber, \Impact of Technology on Legal Development", p. 85. Many businessmen found the system a hindrance rather than a help. A. Hunter Dupree, Science in the Federal Government: a History of Policies and Activities to 1940 (Cambridge, Mass.: The Belknap Press of Harvard University Press, 1957), p. 13. 11Post, Physics, Patents, and Politics, p. 48. 12Arnold Plant, \Economic Theory Concerning Patents", Economica, 1 (new series), February 1934, pp. 39{40; Steven Lubar, \ `New, useful, and nonobvious'", American Heritage of Invention & Technology, 6(1):9{16, Spring/Summer 1990, p. 11. 13The acceptance of central authority in the patent system and other parts of the national government is probably tied as much to events like steamboat explosions as to a widespread recognition of a need for a new patent system. J. G. Burke, \Bursting Boilers and the Federal Power", Technology and Culture, 7:1{23, 1966. 14Dupree, Science in the Federal Government, pp. 43, 46.


apparatus; Henry Ellsworth, the rst of the modern-day Patent Commissioners (the patent system has not been signi cantly changed since the act of 1836, though the Patent O ce's policies have varied), also wanted to channel government sponsorship of private research through his o ce, but this never came to pass.15 These changes did not immediately produce any highly visible e ect (the legal system still encouraged patent litigation and most patents were still granted16) except to incite agitation both for more change and for less. As the patent o ce, which hired some of the country's leading scienti c for the highly sought after positions of examiner, strengthened its criteria in the 1840s, and as the courts became skeptical of patent claims, sentiment against the system grew. The scienti c examiners were considered to lack sympathy for the subtleties of technological innovation and to dismiss the validity of far too many patent applications. While lawyers and patent agents were by far the strongest advocates of of a liberal patent policy, manufacturers, engineers, and even politicians also agitated for reform or abolition.17 While the abolitionists agitating for a return to a simple registry received little support, by 1850 the reform and liberalization campaign was in full swing. Scienti c American, which had spoken lauditorily of the Patent O ce as late as 1848, became the standardbearer, criticizing examiners for viewing applicants as \rogues or fools" and declaring that inventions which were not patented were lost to the world.18 In addition to working for policy changes, the reformers attempted the removal of patent clerks viewed as especially illiberal; a decade and a half earlier the examiners were revered as the cream of the scienti c crop, but now the job was portrayed as one anyone could do, and less cerebral people better than critical, highly skilled intellectuals. In the late 1850s, the pressure was rewarded with mass resignations from the Patent O ce, which was transformed and liberalized with the politicization of the o ce of Commissioner of Patents. Examiners were relegated to a de facto advisory role; they helped applicants to word their claims and disclosures for maximum e ect and were much more closely supervised, and had much less discretionary authority, than before. The low pay, low morale, and heavy workload also led to liberality, since it was easier to pass an application than to explain why it was being rejected. The percentage of applications granted more than doubled in a period of ve years.19 While there were some dissenters who remarked on the cheapness of invention (especially with respect to the cost of development) and the disproportionate patent reward, most people were pleased with these improvements to the patent process.20 In 1860 Abraham Lincoln
Post, Physics, Patents, and Politics, p. 40. Scheiber, \Impact of Technology on Legal Development", p. 86. Post, Physics, Patents, and Politics, pp. 11, 57, 58, 65, 106, 127; Plant, \Economic Theory Concerning Patents", pp. 40, 47; Lubar, \`New, Useful, and Nonobvious'", p. 10. Prominent engineers such as I. K. Brunel and Sir William Armstrong felt the patent system interfered with their work and over-rewarded inventors for what were merely improvements or adaptations of existing knowledge. Politicians, on the other hand, hoped that the Patent O ce could become self-supporting if it granted enough applications. Post, Physics, Patents, and Politics, p. 152; Jewkes, Sawers, and Stillerman, Sources of Invention, p. 39. In England, journalists, academics, and a Royal commission joined politicians and industrialists in agitating for abolition. Plant, \Economic Theory Concerning Patents", p. 47. 18Post, Physics, Patents, and Politics, pp. 110, 120, 136. Holland did repeal its patent law in 1869. Plant, \Economic Theory Concerning Patents", p. 47. 19Post, Physics, Patents, and Politics, pp. 51, 53, 133, 137, 151. 20Jewkes, Sawers, and Stillerman, Sources of Invention, p. 154. The authors note on page 117 that research probably accounts for 4.1% of the total R&D expenditure and conclude that the patent monopoly is essential
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remarked in a speech, \The Patent O ce added the fuel of interest to the re of genius."21 The crest of public approbation for the patent system came in 1968 when Charles Page was granted, by special Congressional act and on the weight of public outcry against a Frenchman who had received a French prize for a similar mechanism, a patent (which covered much more than his original research) for his decades-old discovery of the Ruhmkor coil. The egregious misuse of this extraordinarily powerful patent did much to sour the public on the virtues of patenting.22 The next decades were, for the most part, quiet, business-as-usual ones in the patent system. In 1885 only 12% of patents were assigned to companies, though this number was to change soon. While some voices of dissent were heard (in 1909 Baekeland cried that the system placed the \inventor at the mercy of a legalized system of piracy," and some observers considered the patent system a handicap to business, more because of jurisdictional hassles in court cases and ine cient or red-tape-laden administration on the national level than because of ideological di culties), most of its clients approved of the system's operation. Patents were not particularly hard to come by, and corporations successfully pursued minor reforms for their convenience. There was a disregard or approval of patent monopolies, which became more prevalent with the establishment of research labs and aggressive patent policies by corporations. The one critically important (legal) innovation of this era was the development of the defensive patent tactics that would come to dominate the patent arena.23 The patent came to be viewed by corporations as simply another weapon in the commercial battle, and it was used for the commercially expedient retardation, as well as promotion, of invention. Patent portfolios became very important to strategy, and companies amassed huge ones. Their patent positions were aided by the establishment of research and development organizations and industrial labs, whose secondary (and sometimes primary) motivation for research was to produce patents for the company and which often carried on uninteresting or unfruitful research which was likely to yield secondary patents or patents on alternate approaches to a problem.24 Concerns over patents often led to the delay of research results in applied elds.25 Companies also aggressively pursued and acquired outside patents. These patent portfolios were then used as bargaining chips in negotiations with their competitors; often the patents were pooled. It became di cult for competitors, even those with new and innovative products, to gain a foothold in the market, so their motivation to innovate was lowered; another contributing factor was the licenses on basic technology which
for the introduction of the technology but not necessarily for its discovery. 21David F. Noble, America by Design: Science, Technology, and the Rise of Corporate Capitalism (New York: Alfred A. Knopf, 1977), p. 84; Lincoln was himself a patentee. 22Post, Physics, Patents, and Politics, pp. 176{181. There was rejoicing in the profession when this patent nally ran out. While the patent's owners never won a major infringement suit, it was nevertheless highly e ective when used for extortion against, and later as a bludgeon by, Western Union. It is possible that Page knew what he was doing and colluded with his heirs to enrich them through this stratagem; on his deathbed (shortly after the patent grant) he remarked, \I have neglected and abused many privileges." 23Noble, America by Design, pp. 85{90, 102{105. 24George Wise, Willis R. Whitney, General Electric, and the Origins of U.S. Industrial Research (New York, Columbia University Press, 1985), p. 273; Noble, America by Design, p. 92; Hounshell and Smith, Science and Corporate Strategy, pp. 177, 200, 221; Leonard S. Reich, The Making of American Industrial Research: Science and Business at GE and Bell, 1876{1926 (Cambridge: Cambridge University Press, 1985), pp. 4, 191, 193, 231, 235, 237, 238, 245. 25Wise, Willis R. Whitney, pp. 106, 112, 119.


required them to turn over results of their research to the patent licensor.26 Monopolists often had little motivation to improve their services or provide a superior product, especially when retooling and other capital costs were high.27 Corporations' other costs were also high: in the early stages of the development of nylon for commercial production, for example, 230 experts were involved in the project. Advanced technological research was so expensive that few companies were willing to engage in it without the expectation of a large payback on their successful innovations. Blocking patents encouraged competitors to work around them to new results that might not otherwise have been obtained. While strict patent laws prevented the theft of intellectual property, liberal licensing policies provided companies with the opportunity to use new inventions without infringement. Competitive techniques not involving patents (for instance, price-cutting and lead times) were used, especially when patent protection proved weak, and new products did appear and new companies enter the marketplace, if slower than they might have otherwise.28 An anticorporate patent environment developed starting in the 1930s. In 1937 the idea, previously a minority position, that the Depression had been caused at least in part by corporate monopolies, began to gain ground. In lieu of patent law reform, beginning in the 1940s the federal government began aggressive antitrust action. This was in some respects a success|it caused companies to think twice about entering combinations, trusts, and mergers|but it had little e ect on many patent monopolies, which remained a legally sanctioned form of monopoly maintained by large companies which had dug in to solid patent positions in the previous decades. One of the attempts to tighten controls on patent monopolies, the judge-made \ ash of genius" test, was legislated away in 1952.29 While capitalistic economists were opposed to monopolies, which spelled stagnation for them, the public again reversed its position, in part because of the conception that while the 19th century had been the heyday of the individual inventor, 20th century research was the province of the institution. By this time companies were being awarded between half and two thirds of all patents. The patent system, rooted in the economic and political history of the United States, unchanged in any signi cant aspect for decades, and still holding the general form it had been given in 1836, came to be seen more as a national institution than an economic device. Suggestions to do away with it (or to liberalize or strengthen the patent criteria) met with emotional as well as rational resistance. The heady economic climate made the public less eager to nd a scapegoat; there seemed little reason to tamper with America's economic system.30
Reich, Making of American Industrial Research, pp. 4, 235; Wise, Willis R. Whitney, p. 221; Eric von Hippel, The Sources of Innovation (New York: Oxford University Press, 1988), p. 47. 27Noble, America by Design, p. 99; Reich, Making of American Industrial Research, pp. 137, 192, 235{238. 28Wise, Willis R. Whitney, p. 275; Hounshell and Smith, Science and Corporate Strategy, pp. 4, 7, 172; von Hippel, Sources of Innovation, pp. 48{66 29Jacob Schmookler, Invention and Economic Growth (Cambridge, Mass.: Harvard University Press, 1966), pp. 36, 52; Plant, \Economic Theory Concerning Patents"; Hounshell and Smith, Science and Corporate Strategy, p. 346; Noble, America by Design, p. 88; Reich, Making of American Industrial Research, p. 81. 30Jewkes, Sawers, and Stillerman, Sources of Invention, pp. 23, 37, 134, 135; Lubar, \ `New, Useful, and Nonobvious'". It could be written in 1958, \Not long ago it was a common enough doctrine that rms would try to maintain the status quo by sterilizing patents and suppressing inventions. The popular view now seems almost the opposite one." Jewkes, Sawers, and Stillerman, Sources of Invention, pp. 106; this appeared


The late 60s and early 70s brought a new antiestablishment attitude and a new willingness to criticize the status quo; this resulted in \darkside" histories and less sympathy for corporate patent monopolies. It is too early to appraise the most recent decade of changes, but the trend seems to be back toward stronger protection of intellectual property. While the Supreme Court has historically tended to apply strict standards of patentability, it has not hesitated to overturn Patent Commissioners' denials of patents; the creation of the Court of Appeals for the Federal Circuit in 1982 centralized patent appeals in a court which is increasingly favorable to patent claims. In the past a patentee had di culty upholding his rights in courts which ruled 70% of all patents brought before them invalid, but the Court of Appeals has been much more protective of patent holders, reversing these odds.31

Historiographical Attitudes
The primary question for historians of intellectual property is whether it has successfully done its job. Has the Patent O ce fostered invention, and when has it been most successful at this task? First the broad brushstrokes of the debate will be painted; an overview of the in uences that may have encouraged or reinforced these viewpoints will be presented; and then the positions of particular authors will be examined in more detail. One group of commentators notes that the patent system ensured that recognition and economic rewards were given to those who deserved them. This monetary motivation was necessary to divert talented individuals from other, conceivably more lucrative elds in which their talents would not serve society as well. Even successful inventors would fail to disclose their products and processes to the public in the absence of a reward for doing so and an assurance that they would not be ripped o by imitators who hadn't put any e ort (except that required for craven copying) into their enterprises. The patent system helped to educate everyone. Economic assistance was necessary to o set the high development expenses incurred by innovators introducing new products. The very success of American inventors and technology-oriented industries is evidence that the patent system did its work
in the book's rst edition. It is interesting to note that complaints about the administration of the patent system are chronic; the literature is liberally sprinkled with a litany of laments against: long application processing times; insu cient liberality; delays in publishing granted patents; lack of manpower in the patent o ce; under- or overquali ed patent examiners; insu cient funds; poor ling system; inadequate storage and display facilities; tedious forms; lack of mandatory licensing or working of patents; and a hundred other administrative complaints. While suggestions for reform are common|everyone seems to have a pet scheme for reorganizing the o ce to make it just what a patent o ce should be|attacks against the rationale of the patent system are much less frequent. But see the following footnote. 31Brooke Hindle, Technology in Early America: Needs and Opportunities for Study, Needs and Opportunities for Study Series (Chapel Hill: University of North Carolina Press, 1966), p. 239; Patrick Kelly and Melvin Kranzberg, Technological Innovation: a Critical Review of Current Knowledge (San Francisco: San Francisco Press, 1978), p. 34; Lubar, \`New, Useful, and Nonobvious'", p. 16; Scheiber, \Impact of Technology on Legal Development", p. 100. This trend is not absolute, of course: voices for changes are still heard, particularly in high-tech industries where change is fastest and patents most powerful. The Australian government recently sponsored a study (T. D. Mandeville, D. M. Lamberton, and E. J. Bishop, Economic
E ects of the Australian Patent System: A Commisioned Report to the Industrial Property Advisory Committee (Canberra: Australian Government Publishing Service, 1982)) which conclud