Owning Ideas: Chapter 1 __________________________________________________________________________ Chapter I: Patents English and Colonial Origins Black’s Law Dictionary defines a patent as: “The exclusive right to make, use or sell an invention for a specified period… granted by the federal government to the inventor.”1 As this chapter will demonstrate, this modern concept of a patent as a right in an invention is fundamentally different from the conceptual scheme of patents that was implicit in the early English and American origins of this social and legal institution. The concept of “patent rights” as well as the modern meaning of “invention” was foreign to the administrative practices, political ideology and legal doctrines that eventually gave birth to what we call today patents. Our current concept emerged gradually through a complex series of conceptual transformations which were entangled with economic, technological, ideological and political changes. This chapter elaborates the internal structure and intricacies of the early Anglo-American conceptual scheme that governed the bureaucratic, social and legal phenomenon referred to as patents. It also surveys the partial and gradual transformation of this framework between its appearance in the sixteenth century and the eve of the nineteenth century. Since the argument here is, at least in part, one about differences- differences between the old origins and the modern framework- it seems appropriate to start by briefly elaborating what I take to be the two most fundamental ingredients of the modern Anglo-American concept of patents. Simply put, the modern concept of patents has two main components: it is a general right; and it is a right in an intangible “object” we call an “invention.” In reverse order these are the two components that make patents “intellectual- property” in our modern consciousness. Let us start with the second component which relates to the object of the patent entitlement, but also, at least implicitly, to the subject who is entitled to the right. We think and speak of the object of patent protection as the “invention.” Different legal doctrines define what an invention is, the sorts of inventions that can be protected by a patent, and the exact “borders” of an invention protected by law. The specifics of these doctrines may be contested, but the general unifying framework is the postulation of an intangible object, an abstraction that forms the point of reference for legal protection or for ownership. The invention is usually envisioned as valuable information- new and innovative technological knowledge or discovery. 1 th BLACK ’S LAW DICTIONARY (7 ed. 1999). 1 Owning Ideas: Chapter 1 __________________________________________________________________________ While the concept of the invention constitutes the object of patent protection, it entails also a subject on which this entitlement is bestowed. If the invention is newly discovered technological information, the inventor is an individual (in the complex sense that the law can give to this term) who through the use of his intellect makes the discovery- the originator of the new information. The inventor and the invention are correlatives. They define each other and are implicit in each other. The second component of our modern concept of a patent is that of general rights. What I mean by general rights is a standard set of legal entitlements to which any subject recognized by the legal regime is entitled upon fulfillment of a set of general conditions predefined by law. Modern patent law defines substantive and formal criteria for patentability. Different institutions have powers to interpret those criteria, to apply them and to decide disputes relating to their application. However, once it is determined that the criteria were met, a patent must be issued and enforced. Once patentability is conceded, the issuing agency- in the United States this would be the Patent and Trademark Office- has no discretion on whether to issue a patent and a court has almost no discretion on whether to recognize and enforce it. Nor do any of those institutions have discretion to fashion the exact entitlements protected by a patent on a case-specific basis. Once the general requirements are met, a uniform general standard set of entitlements is recognized and enforced. As demonstrated by fig.1 this framework of patent rights arranges the sovereign, the law, and the legal subjects in a particular set of relations. In this structure the law balances competing social interests and claims, presumably according to some concept of the public good. It does so by defining general standard requirements or criteria for a valid patent right. These requirements apply in a uniform fashion to all cases and persons. Once a person meets these requirements she become s entitled to a standard set of entitlements as a matter of right. The sovereign (or the state) appears as the subordinate of this general law. Its role is not to make particularistic case- specific discretionary decisions, but rather to implement in each case the predefined uniform legal requirements and the predefined consequences flowing from their application. In other words, the sovereign has no discretion regarding whether or not to grant a patent in a specific case or in setting the scope of the particular entitlements it encompasses. Instead, it must certify whether the standard requirements apply (through a procedure we call “examination”). Whenever they do apply it must recognize and protect a uniform set of entitlements. Of course, the sovereign plays also another part vis-à-vis the general law of patents. Through the political process the sovereign is the maker of this general law, rather than its 2 Owning Ideas: Chapter 1 __________________________________________________________________________ subordinate. But this alter-ego tends to remain outside our legal concept of a patent. We tend to separate the concept of a patent from the political process and hence the role of the sovereign in creating the standard contours of patent rights remains mostly invisible within legal discourse and practice. To sum up this second component, patent rights are standard entitlements recognized and protected by the sovereign as a matter of right whenever a set of general and uniform requirements defined by law is met by a particular person. interests Patent Law Public Good Standard Sovereign patentability Patentee requirements examination Non-discretionary standard private right Patent Right Fig. 1 Modern Patent Rights 3 Owning Ideas: Chapter 1 __________________________________________________________________________ The argument of this chapter is twofold. First, it argues that neither of these two components of the modern concept of patents existed in the early English patent practice or in that of the American colonies. Patents, or the practices from which modern patents emerged, were not general rights in the sense just explained. Nor were they understood to apply to a postulated intangible object called the invention. Instead, patents were specific privileges for the exclusive exercise of a trade bestowed by discretionary and case-specific policy decisions of the sovereign. Second, the chapter demonstrates that the transformation from the early origins into the modern framework was gradual and that it was far from over by the end of the eighteenth century. Late eighteenth century patents both in England and the American states prior to the Constitution were quite different from their early seventeenth century ancestors, especially regarding the concept of invention. Yet, even at that stage the modern framework was not yet tightly in place. The first part of this chapter describes in detail the concept of a patent for invention that was implicit in the ancestors of Anglo-American patents: the early administrative practices and the royal-prerogative-based privileges of sixteenth century England. By explaining the basic understanding of the patent-granting power, the character of the patent grant in the period’s political thinking, the typical content of patent grants and the procedures for receiving, revoking and enforcing a patent; it seeks to reconstruct the conceptual framework that constituted and was constituted by those institutional practices. What emerges is a picture radically different from the modern understanding of a patent along the two dimensions explained above. Instead of general rights, patents were conceived and practiced as discretionary privileges. They were a flexible ad-hoc set of exclusive economic entitlements granted on the basis of specific discretion exercised under royal prerogative power. The dominant conceptualization of those exclusive entitlements was not as control of a postulated intellectual entity in the form of the modern “invention,” but rather as the exclusive right to engage in a certain economic activity. The second part of this chapter explores the persistence as well as the development of the early conceptual scheme of patents during the early seventeenth century. This period saw the first gradual and partial appearance of what could be recognized as formal law governing the practices of patent grants. In popular patent lore a few common law patent cases of the time, the 1624 Statute of Monopolies2 and the ideology developed in the political struggle leading to it are considered the direct origin of the modern Anglo- 2 21 James I cap. 3. 4 Owning Ideas: Chapter 1 __________________________________________________________________________