MAKING PATENTS: PATENT ADMINISTRATION, 1790-1860.

AuthorSwanson, Kara W.

CONTENTS INTRODUCTION I. THOMAS JEFFERSON AND THE PATENT BOARD, 1790-93 II. REGISTRATION AND WILLIAM THORNTON, 1793-1836 III. BUREAUCRATIC EXPERTISE, 1836-1860 CONCLUSION INTRODUCTION

Histories of the tumultuous early years of the US patent system have focused on "courts and parties." (1) Congress, using its constitutional authority to "promote the [progress of ... useful [a]rts," passed three patent acts in rapid succession. (2) To understand the transition from the practices of colonial North America to the world's first modern patent system, intellectual histories focusing on legislation and judicial opinions, as well as their interpretation by contemporary politicians and legal thinkers, have been invaluable. (3) There was a third site of contestation, however. The patent clerk in his daily actions, implementing changing legislative mandates, was also influencing how Americans understood patents. (4) As Woodrow Wilson noted over one hundred years ago, scholars and political theorists have long put aside "as 'practical detail' which clerks could arrange" the question of "how law should be administered with enlightenment, with equity, with speed, and without friction." (5) This Essay focuses on patent bureaucrats and the practical details they arranged. (6) In processing patent applications, they were required to interpret the law. Their decisions frequently raised questions of "equity," leading to considerable "friction." (7) In their paper-shuffling, patent bureaucrats materialized political theory. (8) Daily procedure translated high-order questions about the nature and purpose of patents into mundane controversies about application processing and civil service hiring.

The relationship between patent applicants and the government, and thus the nature of patents themselves as the product of that relationship, was enacted in the making of patents, practical detail by practical detail. In the first decades of the US patent system, there was a widely acknowledged shift from patents as privileges to patents as rights, as the relationship between the inventor and the state changed in law and political theory. (9) What began in early modern Europe and colonial America as a discretionary privilege granted by a sovereign became an application as of right in the United States. (10) How patent administrators performed their role crucially contributed to what patents were. The changing patent laws mandated different levels of administrative discretion. In arranging the practical details of patent processing, bureaucrats both narrowed and enlarged the scope of their statutory discretion, thereby making patents more or less like privileges or rights. Further, as they exercised discretion, administrators enacted their understanding of the purpose of patents, choosing to emphasize the public benefit which might flow from this means of encouraging new technologies, or the private concerns of inventors, seeking maximum economic return. With recognition of their power to shape the nature and purpose of patents came controversy about the best men for the job. Was making patents a job for copyists or cabinet officials?

Considering these questions brings us to a clerk's eye view of the patent system, a level at which personal inclinations and practical considerations mattered more than declarations of Congress and courts, which often became certain only in retrospect. (11) In the muddy reality of daily work, patent processing refused to fit neatly into an orderly narrative of transformation from privilege to right, guided by the constitutionally mandated purpose to "promote the [progress of ... useful [a]rts." (12) Grand claims of social benefit and individual rights dissipated in countless bureaucratic decisions. (13) Reliance on ex ante bureaucratic review and ex post critique in courts and the marketplace seesawed back and forth depending on the legislative regime and the actions of the administrators. Bureaucrats, wanting to get the job done, responded to the immediate pressures of applicants, colleagues, and superiors. (14)

In the twenty-first century, the nature and purpose of patents remains consequentially contested, in high stakes debates tied to the interpretation of their early history. (15) This Essay argues that in order for twenty-first-century scholars to evaluate these debates and fully understand the antebellum patent system, we need to understand how antebellum patent bureaucrats made patents. Our histories of the patent system need to include the clerk.

While not offering a full history of seventy years of patent administration, this Essay analyzes US patent making under the three legislative regimes of the antebellum period. I first question dominant assumptions about the early patent board (1790-93) as highly discretionary and public-oriented, and then review the considerable power William Thornton wielded between 1802 and 1828 to shape the patent system in service of inventors, despite the formal absence of any discretion to do so, before turning to the first decades of the modern examination system (1836-60), when debates raged about who should fill the new patent examiner positions. In each era, I consider who was processing patent applications and how, arguing that such details shaped public perceptions about the nature and purpose of patents. In conclusion, I draw some suggestions from this initial survey of US patent administration both for our historical understanding of patents and contemporary critiques of the Patent Office, reminding us of the power of clerks.

  1. Thomas Jefferson and the Patent Board, 1790-93

    The Patent Office has long proudly claimed Thomas Jefferson as the first patent bureaucrat. (16) As Secretary of State in President George Washington's first administration, Jefferson acted, along with Secretary of War Henry Knox and Attorney General Edmund Randolph, as part of a three-person "patent board," pursuant to the Patent Act of 1790. (17) To obtain exclusive rights for up to fourteen years to make, use, and sell an inventive idea "not before known or used," "any person" could submit a petition to these three men. (18) If at least two of them found the invention "sufficiently useful and important," the board was to "cause letters patent to be made out." (19) If a patent was obtained "surreptitiously by, or upon false suggestion," a district court judge had the power to repeal it, but the Act made no provision for appeal from a refusal to grant a petition. (20)

    This mandate to judge not only novelty but also whether an invention was "sufficiently useful and important," combined with the lack of recourse if a petition were denied, created a process similar to that by which petitioners had sought patents from the British crown and from colonial governments. (21) As in these systems, no petitioner, however inventive, had an enforceable right to a patent grant, making it akin to a royal privilege, granted at the "grace and favour" of the monarch. (22) The small committee of unelected executive branch officers replaced the legislature, which, in earlier colonial and state patent processes, had considered petitions and granted patents by private bills. While American inventors had filed patent petitions with Congress seeking to continue this earlier approach, Congress refused to exercise its delegated power by granting patents directly. (23)

    Instead, by designating the Secretaries of State and War as patent administrators, Congress had assigned the heads of two of only three executive departments to the task of processing patent petitions. (24) Due to their government positions, between them, Jefferson and Knox had a comprehensive understanding of domestic and foreign affairs. The third board member, Attorney General Randolph, was the government's legal advisor and also had the duty of examining each patent, once "made out," for conformity to the statute. (25) Like the monarch, these men sat at the center of power as they made their judgment about what was "sufficiently useful and important," with the ability to consider all national priorities. (26) They also were not directly responsible to the people or their representatives, as they were appointed by the president. These elite men, what President Washington called "first characters of the Union," read each application and made unreviewable decisions. (27)

    From their privileged position, these men made patent grants based on their understanding of the public good. (28) Surviving records indicate that Jefferson, himself an inventor, took the lead in patent administration duties. (29) As Jefferson described his work decades later, he examined patent applications "[considering the exclusive right to invention as given not of natural right, but for the benefit of society." (30) Petition by petition, board members, led by Jefferson, learned about new technologies that might be useful to the new nation and then were directed to select only those sufficiently important and useful for a patent grant. (31)

    It is this combination of factors, that is, lack of review from denial and examination by elite men charged with promoting social benefit on a national scale, that has led both scholars and participants to characterize early US patents as privileges. (32) The ability to monetize an inventive idea through a federal grant that could be licensed and assigned was not a right granted to inventors by Congress, but rather a privilege that might be bestowed or withheld in the unreviewable discretion of bureaucrats. This privilege model was replaced during the nineteenth century by the current system in which inventors seek patents with an expectation of a grant if they meet the legal criteria of a patentable invention and with a robust appeal process available if their application is denied, changing patents into rights. (33)

    While others have debated the endpoint of that shift--arguing, for example, that the creation of a statutory...

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