Steven Wilf, Professor and Associate Dean, U. of Connecticut School of Law
The 1808 seal of the New England Association of Inventors and Patrons of Useful Arts depicts a tree richly laden with fruit. A personified image of Time had cast his scythe to the ground and was shown watering the tree. The tree was encircled by a stone wall, which represented the fruit of inventors’ labor “if properly protected by a wall of protection.” Patents, of course, were the barrier which transformed the invention into a useful art that might benefit the entire country. But how can we distinguish between significant inventions worthy of receiving benefits and mere trivial improvements which might be used to establish a monopoly? What exactly is an invention?
Simply defining the legal protection of invention has been a difficult business throughout American history. Initial approaches in the Early Republic, such as allowing a committee of a handful of cabinet officers or courts to determine the validity of a patent through litigation after it was registered, failed to identify worthwhile inventions. The problem was so acute that in 1824 Philadelphia’s Franklin Institute sought established tribunals to determine whether inventions should be patentable. Composed of technically knowledgeable judges, these tribunals were intended to warn the public about worthless devices and to evaluate even those inventions already patented.
The 1836 Patent Act marked an immense step forward to creating an administrative agency to serve as a gatekeeper. It established a Patent Office, headed by a Commissioner of Patents, within the Department of State. Examiners would review each patent to determine if it was truly novel. Determining what is new, however, created bedeviling, almost metaphysical, problems. A new application of an old invention, such as applying a medicine to a different malady—something we permit today—was explicitly found non-patentable. But well-known components might be used in a new way. For example, the Supreme Court upheld a patent for a method of bells ringing on fire engines due to the motion of the carriage itself.
But the legal construction of the invention through the writing of the patent claims, models, or registration of the issued patent is only part of the story. As Leo Baekeland, inventor of the first commercially successful photographic paper, wrote in his papers, which are located in the National Museum of American History Archives Center, “one of the evidences of a successful patent is infringement.”
I am currently writing a legal history of patent law for Cambridge University Press. It will be the first comprehensive history of how we regulate knowledge in the United States from the period of the Constitution to recent debates about patent-user rights and SOPA (Stop Online Piracy Act). It includes the examination of trademarks in a global environment, rights of publicity after the death of a celebrity, trade secrets in new mobile employment relations, and copyright in a period when so much expression is transmitted as digital information.
As part of this project, I am particularly interested in the social history of patents. This includes questions such as: How are social networks of technological information exchange constructed? What role does infringement by intellectual property outlaws play in defining intellectual property law in practice? And what are the shifting understandings of patent as envisioned by ordinary citizens?
The Smithsonian’s collection is particularly rich in these areas. I have been examining the records of patent holders, letters concerning the jostling for power in the corridors of the Patent Office, and rare 19th-century journals written for mechanics. Some of these were published by patent agents who hoped to attract business from potential inventors. Short of a séance, of course, it is nearly impossible to know what historical actors were thinking when they created the legal architecture of invention—or, alternatively, when they quietly infringed on a patent held by someone else. But we can learn a great deal about how, if I can borrow a phrase familiar to listeners of National Public Radio, inventive minds work.
From Prototype, June 2012.