History of the United States Patent Office
The Patent Office Pony
A History of the Early Patent Office
Chapter 1 -- Protection of Inventors before America was Involved
PROTECTION OF INVENTORS BEFORE AMERICA WAS INVOLVED
Hundreds of thousands of years ago, a type of ape arose in Africa which was a little different from other apes. For whatever reason, these apes found that they had much more control over the types of vocal noises they could make than did the other apes of the region. A small group of them invented speech, one of the prerequisites for evolution from apes to humans. The early vocabulary was small, but large enough to make the invention work. We do not know who made this invention, but it had to be a group, because experimental use of speech is necessarily a group project. We know that the group was small, because at that level of development, the apes could not live in large groups. And we know that this group had an advantage in food-gathering, hunting and fighting compared with other groups who could not cooperate so closely as the apes who spoke. It is likely that everyone outside the group who could figure out what was going on and imitate it did so.
Tens of thousands of years ago, men invented a new tool-making process when they discovered that stones could be chipped to form new surfaces which made the chipped stones much more useful than the best natural stones which could be chosen from a pile. Knives made from these chipped stones could be used to butcher animals and to carve pieces of wood into much more useful shapes than could be obtained by breaking and burning. In each tribe, a few members were better flint-chippers than the rest. They became artisans for the tribe. This may have been the first invention to originate a manufacturing industry, small and scattered though it was.
Mere thousands of years ago, men discovered that food-gathering was easier if the seeds of food plants were gathered and planted in one small area, and if wild animals, which had previously been hunted for meat, were gathered into herds and tended until the time when they were to be slaughtered for meat. Agriculture had been invented. [footnote 1]
[Page 5 illustration: Sample of cuneiform writing]
Writing was invented, and mankind passed from the era of prehistory to the era of history by the availability of the written record. Evidence suggests that writing was invented for use on receipts for grain at temple granaries. At first, perhaps one grain of barley would be withdrawn from each bushel furnished to the granary and wrapped in a clay wrapper, which was then impressed, while wet, with the seal of the temple. When the dried clay envelope was [Pg 6] offered to prove the amount of grain which had been furnished, the wrapper had to be broken open to check the amount and type of grain actually furnished. Some bright soul decided that life would be simpler if the wet clay were marked with symbols indicating "3 barley, 4 wheat" at the time the envelope was created, so that it would not be necessary to break the dried envelope to check the contents. But the real genius was the one who decided that, with the symbols on the outside of the sealed clay envelope, it was unnecessary to have actual grain inside. Symbols could be embossed on any clay tablet to indicate the amount of grain furnished, or any other expression for which a symbol was chosen. [footnote 2]
The human race progressed slowly, profiting by the useful inventions of individuals. The race is incapable of making inventions. Only individual humans can make inventions. Unless an individual can profit from making an invention, his incentive for working to perfect the invention is greatly reduced. Some inventions give their inventor a competitive advantage in his trade, usually provided that he does not reveal these inventions to his competitors. Such inventions are subject to being lost when the inventor dies, and humanity does not progress on their account.
[Page 6 illustration: Greek cup bearer]
The first hint of a solution to this problem appeared about 500 B.C. in the Greek colony of Sybaris, which became proverbial for its luxury. The Sybarites, who enjoyed living in luxury, made a law that if any confectioner or cook should invent any peculiar and excellent dish, no other artist was allowed to make this dish for one year. He who invented it was entitled to all the profit to be derived from the manufacture of it for that time. This was done in order that others might be induced to labor at excelling in such pursuits. [footnote 3]
But most of the ancients did not get the point. In Rome in about 30 A.D., there was a skilled artisan who made a glass cup that was unbreakable. He was given an audience with the Emperor Tiberius Caesar (A.D. 14-37) to show his invention. The artisan asked Tiberius to hand it back to him, and then threw it on the floor, which was paved with stone. Tiberius was astonished. But when the artisan picked up his cup from the ground, it was merely dented like a bronze bowl. The artisan took out a little hammer and made the cup quite sound again without [Pg 7] any trouble. After doing this the artisan thought he was destined for greatness, especially when Tiberius asked: "Does anyone else know how to make glass like this?" But when he answered that no one else knew how, Tiberius had him beheaded. Why? Because if his invention were generally known we should treat gold like dirt. [footnote 4] In one version of the story, the man was also an architect and had aroused the jealousy of Tiberius, who saw to it that his name was stricken from all public records.
[Page 7 illustration: Filippo Brunelleschi]
The great architect Filippo Brunelleschi began in 1419 to build the massive dome of the cathedral in Florence, as well as other contemporary architectural projects. The architect had found some difficulty in bringing the heavy stones over the River Arno into Florence for his work. He invented a new kind of boat in which such loads could be effectively hauled over the river. He refused to make his invention public for fear that "the fruits of his genius" be taken by another without his consent. In 1421, the Gentlemen of the Works requested from the Lords of the Council of Florence an exclusive privilege for Filippo Brunelleschi to make and use his invention on the waters of Florence for three years, following a vote in which 218 black beans were cast in favor of recommending the privilege and seven white beans were cast against it. It is likely that the privilege was granted, making Filippo Brunelleschi the first known inventor to be so rewarded in almost two thousand years. [footnote 5] Various Italian city-states granted exclusive privileges to inventors thereafter with some regularity. In 1594, the Doge of Venice granted a twenty-year exclusive privilege to Galileo for his invention of an irrigation machine.
[Page 8 illustration: New stained glass at Eton]
The earliest English patent grant, and probably the first exclusive privilege ever granted to an inventor by the instrument of letters patent, is dated April 3, 1449. It was a license to John of Utynam, who had recently returned to England from Flanders at the command of King Henry VI, to live in England and to work at all arts and sciences without restriction. Because his art of making colored glass had never been practiced in England and because he intended to instruct various subjects of the King in many arts never practiced in the kingdom beside the art of making glass, the King commanded that none of his subjects could use such arts for a term of twenty years without the consent of John. King Henry VI, who was in the process of establishing Eton College and King's College, Cambridge, wanted John of Utynam to create [Pg 8] stained-glass windows for these colleges and to teach others how to create them. All these purposes, as well as protection for John, were included in the patent. John of Utynam practiced his art of making colored glass by installing stained-glass windows at Cambridge University and Eton College, none of which survive. [footnote 6]
But this 1449 patent was not followed by another English patent for over a hundred years. The first patent in the regular series of English patents was the grant to Henry Smyth on April 26, 1552, for making Normandy glass. [footnote 7]
The issuance of letters patent in England was a royal prerogative. The English monarch issued letters patent for many purposes. Originally letters patent were merely open letters from the monarch to anyone who might read them. Privileges were granted by patent when the monarch or the monarch's officers had been convinced that it would be good to do so. Sometimes this meant good for the country, sometimes it meant good for the monarch, and sometimes it meant good for the officer. But they were always privileges granted by the monarch, not rights due to the recipient.
[Page 9 illustration: Portrait of Queen Elizabeth I]
During the reign of Queen Elizabeth I, the royal officers were generally diligent in their attention to the industrial and economic aspects of English life. Elizabeth issued patents for inventions which created beneficial results and technological progress for all England, but she also issued them for things which were already in common use in well established industries, giving some favored courtier or large contributor to the royal purse the exclusive privilege of selling salt, iron, paper, currants, sulfur, etc. This led in 1601, near the end of her life, to heated protests in the House of Commons. She gave a magnificent speech to Parliament in which she expressed her ignorance that her subjects had been oppressed by her grants, and she promised reform. She promised that the validity of her patents henceforth could be tested in the common-law courts, which previously had not been possible. [footnote 8]
This speech cut off the serious protests in Parliament for a while. However, the following year, the celebrated case of Darcy v. Allin [footnote 9] was brought in the common law courts, for infringement of a patent for playing cards, which were a common article of commerce before the patent was issued. The verdict found that the patent was bad in law.
In 1624, Parliament passed the Statute of Monopolies, [footnote 10] which made void all future grants of monopolies, but expressly excepted grants for 14 years or less for the sole working and making of any new manufacture within the [Pg 9] realm. This statute became the basis for all subsequent patent grants in countries whose law is derived from English common law, whereby patents are distinguished from illegal monopolies. However, while the Statute of Monopolies limited the kinds of monopolies that the monarch could grant, it did nothing to give an inventor a right to a patent. An inventor still could get a patent only on the whim of the monarch.
After praying for the royal boon of a patent, and paying a very large sum of money, the inventor might get a patent. This gave him merely the right to go to court to try to prove the validity of his patent before hostile courts. This system worked so poorly that during the 150 years following the beginning of the numbering of English patents in 1617 scarcely more than 1000 patents were issued in England.
[Page 10 illustration: Portrait of Peter Chamberlen, MD]
In England, in 1598, physicians and surgeons were in two distinct professions. The profession of surgeon was an outgrowth of the profession of barber, resulting in the modern red-and-white barber pole, reminiscent of bloody bandages placed around a white pole to dry. The physicians of the day would not perform surgery. It was 1598 when Peter Chamberlen the Elder was inducted into the guild of barber surgeons. It is known that the first practical obstetrical forceps were invented by a member of the Chamberlen family, and the probable inventor was Peter Chamberlen the Elder. Although he was a barber surgeon rather than a medical doctor, he was surgeon to Queen Anne, wife of King James I of England. He had such an obstetrical reputation that he aroused the envy of the Royal College of Physicians, who had him thrown into Newgate Prison for practice of medicine without a license. He was released from prison by order of his patroness the Queen. He maintained his obstetrical forceps as a trade secret and was able to deliver the babies of women who would otherwise die without the forceps. He died in 1631. Peter Chamberlen the Elder was succeeded in the family secret by his brother Peter Chamberlen the Younger, another barber surgeon with a fine obstetrical reputation, who was constantly embroiled in controversy with the Royal College of Physicians. Peter Chamberlen the Younger had a son, also named Peter Chamberlen, who was the first of the family to obtain a medical degree (actually several medical degrees), and was thus the first Doctor Peter Chamberlen. In 1628, he became a member of the [Pg 10] Royal College of Physicians. He had a large obstetrical practice. It was believed at the time that he had a special instrument with which he assisted women in labor. Doctor Peter Chamberlen was a shrewd businessman. An investigation made at the time revealed that he frequently demanded a large fee for his services. Three sons of Doctor Peter Chamberlen were obstetricians -- Hugh Senior, Paul, and John Chamberlen. They continued the use of the trade secret forceps, giving the family a continued monopoly in the safe delivery of women in labor. In 1670, Doctor Hugh Chamberlen Sr. offered to sell the secret to the personal physician of the king of France, but the sale was not made. He did later sell the secret to a Dutch physician, who maintained an obstetrical monopoly in Amsterdam for another sixty years, until another Dutch physician published the secret of the forceps in 1732. For over a century, women around the world had died in childbirth because the Chamberlen family had no effective way of profiting from the family invention except by maintaining it as a trade secret. [footnote 11]
In the England of 1643, one Joseph Jenks (sometimes Jenckes), iron founder, had great inventive skills and little chance to profit from them.
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