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The Patent System During the French Industrial Revolution: Institutional Change and Economic Effects Gabriel Galvez-Behar

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The Patent System During the French Industrial Revolution: Institutional Change and Economic Effects Gabriel Galvez-Behar The Patent System during the French Industrial Revolution: Institutional Change and Economic Effects Gabriel Galvez-Behar To cite this version: Gabriel Galvez-Behar. The Patent System during the French Industrial Revolution: Institutional Change and Economic Effects. Jahrbuch für Wirtschaftsgeschichte / Economic History Yearbook, De Gruyter, 2019, Patent Law and Innovation in Europe during the Industrial Revolution, 60 (1), pp.31-56. 10.1515/jbwg-2019-0003. halshs-00544730v2 HAL Id: halshs-00544730 https://halshs.archives-ouvertes.fr/halshs-00544730v2 Submitted on 13 Jun 2019 HAL is a multi-disciplinary open access L’archive ouverte pluridisciplinaire HAL, est archive for the deposit and dissemination of sci- destinée au dépôt et à la diffusion de documents entific research documents, whether they are pub- scientifiques de niveau recherche, publiés ou non, lished or not. The documents may come from émanant des établissements d’enseignement et de teaching and research institutions in France or recherche français ou étrangers, des laboratoires abroad, or from public or private research centers. publics ou privés. Copyright The Patent System during the French Industrial Revolution: institutional change and economic efects Gabriel Galvez-Behar Université de Lille – Institut de recherches historiques du Septentrion Preprint Version For quotation, please re!er to Gabriel Galvez-Behar "#he Patent S$ste% during the French Industrial 'evolution ( Institutional Change and *conomic *fects, Jahrbuch für Wirtschaftsgeschichte special issue "Patent La- and Innovation in *urope during the Industrial 'evolution, edited b$ ./ 0onges and F/ Sel&ert vol/ 12 n° 4 5246 p. 31-56. [https(99doi.or&942/48489:b-g-2019-0003] Introduction #he role of institutions in economic development is a sharpl$ debated issue and the one pla$ed b$ intellectual propert$ is particularl$ discussed. #he ti%e is long gone -hen ;a< =eber could clai% -ithout real discussion that "-ithout the sti%ulus of [the? patent la- the inventions crucial !or the development of capitalis% in the @eld of te<tile industr$ in the 18th centur$ -ould nout have been possible,4/ Bot onl$ have patents been the subject of recurring controversies throughout their histor$ but the$ have also been a source of perple<it$ !or historians and econo%ists aliCe/ Fritz ;achlup already stated in 468A that "i! -e did not have a patent s$ste% it -ould be irresponsible on the basis of our present kno-ledge of its economic consequences to reco%%end instituting one/ But since -e have had a patent s$ste% !or a long ti%e it -ould be irresponsible on the basis of our present kno-ledge to recom%end abolishing it,5/ In a sense this kind of debate continues toda$ in the light of ne- 1 M. Weber, General Economic History, Glencoe, Ill. :1950 2 F. Machlup, An Economic Review of the Patent System, Washington 1958 495A -ork on patent-free innovation in the -aCe of -hat 'obert .llen put !or-ard in his 46A7 se%inal paper7/ #he discussion -as revived about Great Britain, -hich =eber had -rongl$ %ade the cradle of the @rst %odern patent la-D/ In short even acade%icall$ the role of patent s$ste%s in econo%ic histor$ re%ains a highly controversial subject/ In !act it is quite possible that such a question %a$ not have an una%biguous ans-er/ 0espite their !a%il$ rese%blance patent la-s have strong national speci@cities that international regulator$ institutions do not erase8/ In addition, these s$ste%s experience a number of often e<ogenous "shocks, that can have an i%pact on their o-n i%ple%entation1/ Finall$ one of the parado<es of patent s$ste%s is that !or a long ti%e the$ have constituted a co%%on base of rules !or completel$ diferent industries even i! certain speci@cities %a$ have been developed in some countries and !or certain activities/ .ll this requires a !airl$ precise look at the diferent regi%es covered b$ a patent s$ste% be!ore %aCing comparisons and dra-ing lessons from the% too quickl$/ France -as one of the @rst %a:or industrialized countries to adopt a legislation on patents in 1791. It pla$ed a leading role in the e%er&ence of the @rst international regulations such as the International Union !or the Protection of Industrial Propert$ (Union de ParisG in 4AA7/ Ho-ever his role is relativel$ little discussed. In her book The Democratization of Invention F5228G B. Iorina Jhan de!ended a sharp point of vie- about the French and British patent s$ste%sE/ By comparing Great-Britain, France and the United States she suggested that .%erican econo%ic per!or%ance -as based on a democratization of invention -hich -as 3 R. C. Allen, Collective invention, in: Journal of Economic Behavior & Organization 4/1, 1983, pp. 1-24 ; A. Nuvolari, Collective invention during the British Industrial Revolution: the case of the Cornish pumping engine, in: Cambridge Journal of Economics 28/3, 2004, pp. 347-363 ; L. Hilaire-Pérez/C. MacLeod/A. Nuvolari, Innovation Without Patents, in: Revue économique 64/1, 2013, p. 5-8. 4 C. MacLeod, Inventing the Industrial Revolution : the English patent system, 1660-1800, Cambridge 2002 ; C. MacLeod, Patents for invention: setting the stage for the British industrial revolution?, in: Empiria. Revista de Metodología de las Ciencias Sociales 18, 2009, pp. 37-58 ; S. Bottomley, The British Patent System during the Industrial Revolution 1700–1852: From Privilege to Property, Cambridge 2014 ; S. Bottomley, Did the British Patent System Retard the Industrial Revolution?, in: The Criterion Journal on Innovation 1, 2016, pp. 65-83. 5 J. Lerner, 150 years of patent protection, in: The American Economic Review 92/2, 2002, pp. 221-225. 6 C. Diebolt et K. Pellier, 400 ans de protection par les brevets, 400 years of patent protection: a comparative cliometric contribution, in: Revue économique 63/3, 2012, p. 611-621 7 B. Z. Khan, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920, Cambridge 2005. 595A allo-ed b$ its o-n patent s$ste%/ Contrar$ to the .%erican one the "philosoph$ and enforce%ent of intellectual propert$ in Britain and in France the structure of patent and copyright s$ste%s and the resulting patterns of invention, -ere all consistent -ith the oli&archic nature of *uropean societ$,A/ For her the revolutionar$ rupture had onl$ a rhetoric %eaning. French %ercantilist policies re%ained during the 46th centur$( %istrust to-ard !oreign inventions strong involve%ent "in the discretionar$ promotion of invention” and pre!erence !or secret re%ained the essential !eatures of French patterns of invention and conduced to promote rent-seeking activities, which were unfavorable to competitiveness/ Such an assess%ent see%s all the %ore severe as the French patent la-s has long been perceived as a s$ste% based on natural right/ #he purpose of this article is to revisit this contradiction in light of ne- sources and -orks6/ #hanks to the historical database provided b$ the French Patent KLce (Institut national de la propriété industrielleG and to ne- dissertations it is possible to give a %ore comprehensive anal$sis of the French patent s$ste% in the @rst hal! of the 19th centur$/ In a @rst part -e describe the le&al fra%e-ork and sho- its contradictor$ aspects( a natural right inspiration, s$%bolized by the so-called refusal of an$ preli%inar$ e<a%ination, on the one hand M a restrictive access due to the cost of the patent, on the other hand. #hen, in a second part -e describe the i%ple%entation of the s$ste% b$ insisting on its diferent use b$ industries/ Finall$ -e highlights the efect of the 4ADD Patent .ct and suggest that the !ailure of the s$ste% -as the result of a lacC of institutional infrastructure/ Inventing the French Patent System .dmittedl$ %an$ of the proble%s relating to the inventorsN rights appeared long be!ore the French 'evolution. #he ro$al declaration on privile&es !or inventors in 4E15 expressed a ne- 8 B. Zorina Khan, The Democratization, p. 6. 9 G. Galvez-Behar, La République des inventeurs. Propriété et organisation de l’innovation en France (1791-1922), Rennes 2008 ; J. Baudry, Une histoire de la propriété intellectuelle: les brevets d’invention en France, 1791-1844 (PhD EHESS Paris, 2014) ; C. Koblentz, La Société d’encouragement pour l’industrie nationale et les inventeurs 1824-1844 (PhD EHESS Paris, 2016). I thank the INPI and especially Steeve Gallizia and Valérie Marchal for having helped me in this research, which has been conducted as part of a collaboration between the INPI and the IRHIS. 795A conception of privile&es -hich depended on the strong debates about the economic regulation42/ In the 1780s even though the e<clusive privile&e -as the subject of considerable criticis% %an$ a&reed that transitional %onopolies could be &ranted to inventors/ Inspired b$ the British e<a%ple the French ro$al administration !acilitated the issuance of privile&es in inventions -hile easing procedures of prior expertise/ In return, it required the deposit of their inventions b$ patentees in order to promote the develop%ent of the industrial kno-ledge/ 'ecognition of the natural right of inventor the issuance of te%porar$ privile&es as a re-ard !or inventors and the disclosure of inventions -ere the three !eatures of a %odel -hich had appeared at the end of the Ancien Régime/ The Revolution of inventors (1791) 0espite some continuities the disruptive i%pact of the 'evolution cannot be underesti%ated. #he @rst revolutionar$ patent la-s resulted from a strong lobbying of inventorsN societies/ Such or&anizations had come to light at the end of
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