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.