1.2 The Weakness of Early Patent Systems

History of Patents: 500 BC to the 1700s

Given the commonsense logic of granting patents to stimulate invention, it comes as no surprise that patent- like incentives date all the way back to antiquity. In the ancient Greek city of Sybaris (located in what is now southern Italy) in 500 BC, “encouragement was held out to all who should discover any new refinement in luxury, the profits arising from which were secured to the inventor by patent for the space of a year.”^viii

The first formal patent legal institutions were developed in the Republic of Venice in the mid-1400s. The Venetian Statute of 1474 decreed that the inventors of new and useful devices would be protected from infringers and copiers for ten years so long as they disclosed the details of their inventions. Most Venetian patents were granted in the field of glass making, and when a large number of these glass makers emigrated to other countries in Europe, they sought similar protections from the local authorities. This is how the notion of patent rights, and their expression in patent legal systems, began to spread and gain acceptance throughout Europe.

Initially, however, English and French monarchs used patents not simply to stimulate invention, but also to grant exclusive trade monopolies to those favored by the court. In the reign of Elizabeth I in the latter 1500s, some 50 patent monopolies were granted over the trade in such staples as salt, soap, starch, iron, and paper. Critics said these “enriched the monopolist and robbed the community” while doing absolutely nothing to stimulate new technology or industry.

A growing public outcry ultimately forced Elizabeth’s successor James I to revoke these grants of trade monopolies in 1610. In 1624, the Statute of Monopolies formally repealed the practice and henceforth restricted patent rights solely to new inventions.

Figure 1.7 Portrait depicting Queen Anne of Great Britain by John Closterman, circa 1702. (credit: Workshop of John Closterman via Wikimedia Commons / Public domain)

European countries made several other important innovations in their early patent systems. In the mid-1500s, France became the first to publish patent descriptions from inventors who chose to submit them. England under the reign of Queen Anne (1702–1714) was the first to require inventors to submit a written description of their patent to “describe and ascertain the nature of the invention and the manner in which it is to be performed.” And in 1729, France began to publish abbreviated digests of patent descriptions, but these were intermittent and subject to delays of up to 60 years after the patents were originally granted. As might be expected, this lack of regularity limited the technological knowledge sharing that is one of the great benefits of a patent system.

Flaws of Early Patent Systems

Old World patent systems suffered from other major weaknesses as well. Patents for inventions imported from other countries were regularly granted, increasing the incentive for would-be patentees to copy the creative work of others rather than invent for themselves. And there was generally no systematic examination of patents by technical experts, in part because this was viewed as an intrusion upon the prerogatives of the Crown.

But the biggest problem with early patent systems was that they all shared a tendency to reinforce the wealth and prerogatives of elites, not the welfare and productive capacity of the whole of society. In Britain, patents were favors granted “by grace of the Crown” and were often only secured through court connections. They were also “subject to any restrictions the government cared to impose, including the expropriation of the patent without compensation.”^ix

What’s more, patent application fees were prohibitively high—more than 11 times the per capita annual income of the average British citizen—which put the system out of reach of all but the wealthy. Yet ironically, in the parliamentary debates over the patent system, the exclusion of the “working classes” was regarded as one of the chief virtues of the British patent system.

British patent law also severely limited the ability of inventors to sell or license the rights to their discoveries, as noted in a contemporary 1832 book entitled A Practical Treatise on the Law of Patents for Inventions. ^x This restriction, along with “working requirements”—these were regulations that forced patentees to manufacture products based on their patents within two or three years of issuance or lose their patent rights—limited innovation activity mainly to those who had the factories (or the ready capital to build them) needed to produce such products.

These rules had two significant effects upon the British economy. They restricted innovation to only a small sector of the population rather than unleashing the creativity and productivity of the whole people. And they created a bias toward inventions that enhanced the market dominance of incumbent, capital-intensive industries rather than opening up new markets for the sorts of disruptive new industries that usually drive economic progress.

“European societies were organized in ways that concentrated power in the hands of elites and facilitated [parasitic] rent-seeking by favored producers,” notes historian B. Zorina Khan. “The organization of invention was no exception. A society that restricts [invention] to elites can generate exceptional gains early on, but the initial spurt is unlikely to be maintained.”

Indeed, the result in Britain was unbalanced and narrowly focused economic growth. Inventors faced high transaction and monetary costs, a limited market for their inventions, and a great deal of uncertainty. Diffusion of new technological knowledge was severely inhibited, and the rate of technological change was adversely affected as a result. Eventually, Britain’s initial leadership of the Industrial Revolution had more to do with its large existing commercial holdings and manufacturing base, and its vast stores of amassed capital, than with systemic or broad-based encouragement of innovation within British society.

The Changing Tide

The elitist nature of early patent systems reflected the feudal economic relations that dominated that era. But by the late eighteenth century, capitalist economies were beginning to emerge across Europe, and in Britain, nationwide lobbies of manufacturers and patentees called for an overhaul of the patent system to bring it in line with this new economy. The needed reinvention would come not from Britain, however, nor even from France, which had its own democratic revolution soon after America’s. Instead, it took place in the newly liberated United States, where a vibrant capitalism unburdened by centuries of entrenched feudalism was developing.

This, then, is the story of one of the most admired of all American inventions—the modern democratized patent system, now used widely throughout the world.