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Early History of Patents in the United States

William W. McMillan

First Patent Laws in U.S.

Ø Britain originally made Royal “patent grants”Ø 18th Century: More practical “letters patent”Ø U.S. Constitution provides for Federal grants of

patents and copyrightsØ Starting in 1790 patents were submitted to

Secretary of War, Secretary of State, and Attorney General

Ø Any two could approve for 14 yearsØ Fewer than 50% were granted

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First Patent Laws in U.S.

Ø In 1793 new law allowed clerks to handle patentsØ Based on personal oath sworn by inventor as to

originalityØ In 1802: Superintendent of Patents hiredØ Worked more for inventors than public

2 Goals of Patents

Ø Protect interests of, and reward, inventor

versus

Ø Promote commerce and public interest by disseminating useful technology

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Early Conflicts, Enforcement

Ø Confusion about damages for “make and use”§ What if make XOR use?

Ø Conflicts over steamboat, cotton gin, water-powered mills

Ø Many agents went out to collect licensing fees from unlicensed users

Ø Patent extensions granted frequently§ Sometimes whole additional 14 years if government

error

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Edwin Stanton

Early Conflicts, Enforcement

Ø Of Federal Court cases, up to 50% were about patents by end of 19th Century

Ø Multiple patents for the same thingØ Patents for minor variations

§ Over 100 for manufacture of nails

Ø Patents for various aspects of same device§ E.g., for the sewing machine

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Patent Act of 1836

Ø Patent Office formedØ Fire of 1836 destroyed 46 years of patent recordsØ New “fireproof” buildingØ Professional government patent examiners

§ Checked validity of patentsØ Rapid increase in patent applicationsØ Increase in private patent agentsØ Appearance of brokers to sell patent rights

6 How Use a Patent?

Ø Use in your own firm to produce productsØ Sell to a large concern

§ Samuel Morse originally wanted to sell patent for telegraph to the government

§ Edison sold telegraph-related patents to companiesØ License to many disseminators

§ Morse ended up licensing his patent

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How Use a Patent?

Ø Form syndicate that owns patents§ License for royalties to outsiders§ Pool for common use, as railroads did

8 Early High-Tech Patents

Ø Telegraph (Samuel Morse)Ø Reaper (Cyrus McCormick)Ø Vulcanized rubber (Charles Goodyear)Ø Duplex telegraph (Joseph Stearns)Ø Quadruplex telegraph (Thomas Edison)Ø Harmonic telegraph (Elisha Gray)Ø Telephone (Alexander Bell)Ø Electric light (Thomas Edison)

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Development of “Elite Patent Bar”Ø High-status attorneys specializing in patents

§ Senators, Attorney General, well-established private attorneys

Ø Technical legal experts, use of domain expertsØ Connections to government agencies and

personnelØ Strategists in writing, targeting, dividing up patentsØ Connections to financing sourcesØ Litigators in court, advocates at patent office

10 Development of “Elite Patent Bar”

Ø Connections to large concerns interested in acquiring or using patents, and to brokers

Ø Regional, national scope

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Individual Inventors as Cowboys

Ø Heroic image§ “Inventors of the Purple Sage” (like cowboy heros)

Ø Often not college educated§ Henry Ford learned mechanics, Edison telegraphy

Ø Races or shootouts between two actors§ E.g., Bell vs. Gray, Edison vs. Westinghouse

Ø Sometimes from another field§ A. G. Bell was teacher of the deaf, attended science

lectures at MIT, Ford from utility company

12 Individual Inventors as Cowboys

Ø Some used local machine shops for prototypesØ Funding by patrons – who also funded legal power

§ E.g., Bell by Hubbard and SandersØ Role of serendipity – the fruits of prospecting for gold

§ E.g., Goodyear and vulcanization, Bell and acoustic effects

Ø Sold inventions to large concerns§ Edison to Gold and Stock, ???

Ø Many founded major companies§ Goodyear, Ford, Edison, Bell

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Big Dogs Come Out to Play

Ø Western Union owned the telegraph market§ … except for intracity services such as stock

quotes, private lines, and alarm services

Ø Gold and Stock Ø Individual inventors yield to large research

departments

14 Calling Interference

“An interference is a contest …between an application and either another application or a patent. An interference is declared to assist ... in determining priority, that is, which party first invented the commonly claimed invention…” (uspto.gov)

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