OLIVER EVANS AND THE FRAMING OF AMERICAN PATENT LAW.

• Author: Beauchamp, Christopher

CONTENTS INTRODUCTION I. FRAMING STATE AND FEDERAL PATENTS A. Engines and Ingenuity B. What Were State Patents? 1. The granting process 2. Purpose 3. Scope 4. Remedies 5. Cancellation and working requirement C. From State to Federal II. PATRONAGE, PROPERTY, AND POLITICS A. Inventor and Author B. Justifying Patents: Right, Reward, and Relief III. MARSHALL, JEFFERSON, AND THE PROPERTY QUESTION A. Marshall and the Inchoate Right B. Jefferson and the Baltimore Millers IV. OLIVER EVANS AND THE MAKING OF AMERICAN PATENT LAW A. Litigation Machine B. Oliver Evans and the Principles of Patent Law CONCLUSION INTRODUCTION

Oliver Evans finally snapped one day in May of 1809. He had been a patent holder for more than twenty years, reaching back to the years before the U.S. Constitution and the first federal patent law. For Evans, these had been two decades of litigation, lobbying, and ceaseless struggle to promote himself and his flour-milling machines. Now came the final straw: a justice of the U.S. Supreme Court, a past antagonist of Evans, delivering an opinion "highly damaging to the rights of inventors" mere days after having declared in court that a patent right was an "infringement of public right." (1)

Evans left his engineering works on Philadelphia's Vine Street and went home. He gathered his family and brought out a thick bundle of papers: all the drawings, specifications, plans, and notes of inventions that he had not yet put into public use. It was for his family's own good, he announced, that he must destroy his work, lest his children and grandchildren be led into ruin and persecution as he had been. All burst into tears, before unanimously signaling their assent, and Evans dumped his inventions into the fire. (2)

In Evans's telling, he was the victim of an American patent system that failed to protect inventors. Having been baited by the promise of protection, he was at times "thrown into despair" at being "robbed by law." (3) At one point he publicly renounced further inventive work, "forced to bury my talent with disgust," as he put it, "because a patent in this country is not yet worth the expense of obtaining it." (4) Later historians sympathized, seeing Evans's treatment by the courts as "unfair" handling in what they deemed the law's "'Embarrassing' Era." (5)

To many of his contemporaries, though, Evans and his patent represented quite the opposite. He held a "monopoly" to which the millers and farmers of the country were "tributary" and which he deployed for "the oppression of individuals [and] the exaction of exorbitant sums of money." (6) Evans repeatedly sought and received the special favor of legislatures, both state and federal. Tellingly, when Evans publicly retold the story of burning his inventions in despair, he backdated it three years to 1806--before Congress renewed his most valuable patent, and before he built a system of licensing and litigation that spanned much of the country. (7)

If the complicated birth of United States patent law can be told through the story of a single figure, that person is Oliver Evans. Evans was one of the leading inventors and engineers of the early Republic. He was also its most prominent patentee. Evans's patenting activities spanned the Founding: he received patents from four states in the 1780s, and then, after the United States Constitution authorized federal patents and Congress passed the first patent law in 1790, Evans obtained the third U.S. patent to be granted. (8) His rights became the subject of sustained executive and congressional politicking, culminating in his grant receiving the first legislative extension of a federal patent in 1808, three years after it had expired. (9) The revived (and mightily controversial) patent then loomed over both the politics and the law of the patent system. Evans brought four of the U.S. Supreme Court's first six patent cases. And he pioneered large-scale patent enforcement in the early Republic, creating and directing a multi-state network of lawyers and agents to assert his rights, as well as issuing what must surely have been the first demand letter to a sitting U.S. President. Throughout, the articulate and frequently outraged Evans was the nation's leading polemicist for the rights of patentees, damning the shortcomings of the law and the perfidy of his opponents in letters, pamphlets, and sarcastic verse.

Even if Evans only served as a Zelig-like figure, repeatedly popping up at the major waypoints of Founding-era patent history, he would be a crucial test case for several important historical questions, including the continuity or discontinuity between the pre-constitutional state and post-1790 federal regimes, the role played by natural-rights conceptions of the patent, and the enforceability of inventors' rights in the early Republic. But Evans should stand for more than that. The history of patent law in the late eighteenth and early nineteenth centuries was not, by and large, driven by judicial abstractions or debates of political principle; instead, it was worked out in practice and shaped by the cases that came to the fore. And of the concrete contexts in which the patent right was hammered out, none were more Influential than the cases and controversies of Oliver Evans.

1. FRAMING STATE AND FEDERAL PATENTS

   State patents have played little role in recent scrutiny of the Founding-era patent system. The search for precedent to the Constitution's patent clause and to the first patent law more commonly leads to English antecedents. (10) To some extent, this benign neglect is fair: state patents were a collection of ad hoc legislative grants rather than a general system of exclusive rights, and they lacked crucial features of the federal scheme adopted in 1790. But there was more continuity between the state and federal regimes than first meets the eye.

   Oliver Evans is an ideal candidate to test the connection. As the holder of four state patents, he enjoyed as much state protection as any inventor and more than most. And he bridged the constitutional divide: by obtaining a federal grant in 1790, Evans became the first inventor to traverse the two regimes.

   1. Engines and Ingenuity

      Oliver Evans was born in Newport, Delaware in 1755, the son of a shoemaker and farmer. (11) He was apprenticed in his teens to a wheelwright and wagonmaker, and it was during this period that he began both his technical education and his restless mechanical tinkering. Evans later attributed his interest in steam engineering to a tale of a local blacksmith's boy who filled a stopped-up gun barrel with water and heated the end to produce an explosion: at that moment, Evans recalled, "[i]t immediately occurred to me that there was a power capable of propelling any waggon [sic]." (12) He later developed an interest in wire manufacturing and, while laid up from a scythe injury, designed a machine that would cut and bend the wire teeth used in carding wool and cotton. (13) According to Evans, his short-lived efforts in that area attracted a mixture of ridicule from his family, a polite rebuff from the Pennsylvania legislature (which he had approached for a manufacturing subsidy), and swift copying of his demonstration prototype by the card manufacturers of Wilmington and Philadelphia. (14) Having failed to gain an inventive foothold, by 1782 he was living at Tuckahoe, on the Eastern Shore of Maryland, and running a general store with his younger brother Joseph. (15)

      It was in Maryland that Evans conceived the first elements of the system for which he would become famous: the mechanized flour mill. Milling at that time was labor-intensive, hard, and unsanitary work, in which sacks of wheat were hauled to the top of the mill and progressed downward through a series of hand-operated processes and water-powered grindstones. (16) Starting in 1783, Evans began to piece together a series of machines that would collectively form a continuous automated milling process. The first was an elevator, a series of buckets on a moving belt that would lift the wheat in place of the traditional two-man hoist. The second was the "hopperboy": a rotating rake that spread, cooled, and dried the ground meal on an upper floor of the mill while raking it into a hopper for bolting, or sifting. The hopperboy acquired its name because the job had hitherto been performed by a boy with a rake. (17)

      It was not long before Evans put his designs into practice. He and two of his brothers had bought a portion of their father s land near Newport in 1782, and now constructed a mill at a place called Red Clay Creek. (18) The mill was operative by 1785. Once his system was in place, Evans tried to interest local millers, but with little success. The prosperous Quaker millers of Wilmington's Brandywine Creek were uninterested, at least in paying Evans for the use of his invention. (19) Evans's later accounts of this period recalled a mixture of clannish resistance, folksy skepticism ("Oliver, you cannot make water run up hill, neither can you make [hopper] boys without the help of women."), and a calculating refusal to absorb the costs of experimentation. (20)

      Snubbed by the Brandywine millers, Evans turned to a different audience: the state. His friend George Latimer, a wealthy mill-owner's son who had previously supported Evans's carding-wire venture, was now a member of the Delaware Assembly. It was Latimer who suggested that Evans petition the state for an exclusive right to his inventions. (21) There was little local precedent: Delaware had never granted a colonial or state patent for an invention, (22) though neighboring Pennsylvania and Maryland had both done so earlier in 1785, and the rival steamboat inventors James Rumsey and John Fitch were then noisily campaigning for state monopolies in the mid-Atlantic states. (23) On the other hand, Latimer's patronage offered Evans immediate traction with Delaware's governing elite. George's father, James...