University of Washington School of Law UW Law Digital Commons Articles Faculty Publications 2015 The Lost "Art" of the Patent System Sean M. O'Connor University of Washington School of Law Follow this and additional works at: https://digitalcommons.law.uw.edu/faculty-articles Part of the Intellectual Property Law Commons Recommended Citation Sean M. O'Connor, The Lost "Art" of the Patent System, 2015 U. Ill. L. Rev. 1397 (2015), https://digitalcommons.law.uw.edu/faculty- articles/198 This Article is brought to you for free and open access by the Faculty Publications at UW Law Digital Commons. It has been accepted for inclusion in Articles by an authorized administrator of UW Law Digital Commons. For more information, please contact [email protected]. O'CONNOR.DOCX (DO NOT DELETE) 8/25/2015 9:25 AM THE LOST ‘‘ART’’ OF THE PATENT SYSTEM Sean M. O’Connor* Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause. Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to dis- place ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized pro- duction. The loss of an ‘‘art’’-based concept of the patent system is ar- guably causing some of the confusion over the proper scope and na- ture of the patent system, especially with regard to upstream patenting. I argue that this loss is leading to over- and underinclusive senses of patent eligible subject matter as well as amnesia as to the long-standing importance of method patents. I offer suggestions on how to reorient the patent system back to a focus on (useful) ‘‘art.’’ TABLE OF CONTENTS I. INTRODUCTION ................................................................................. 1398 II. THE TRANSFORMATION OF ‘‘ART’’ IN WESTERN CULTURE ....... 1400 A. The Roots of ‘‘Art’’ in ‘‘Techné’’ ............................................... 1401 B. Classifications of the Arts (and Sciences) ................................ 1404 C. Renaissance ‘‘Ingeniators’’ and the Roots of Innovative Design and Engineering ............................................................ 1408 D. New Arts and New Sciences of the Early Modern Period ...... 1411 * Boeing International Professor of Law and Assistant Dean for Law, Business & Technology Initiatives, University of Washington School of Law. The Author thanks Adam Mossoff, Robert Brauneis, and participants at The History of Patented Innovation and Creativity research symposium hosted by the Center for Protection of Intellectual Property at George Mason University School of Law, especially H. Tomás Gómez-Arostegui for very helpful eighteenth-century sources on ‘‘useful arts’’; Benjamin Heller for allowing me to use his translation of the Encyclopédie’s ‘‘Map of the System of Human Knowledge’’; Gregl Mandel; and the incredible research librarians at the Gallagher Law Library: Cheryl Nyberg, Mary Whisner, Anna Endter, and Grace Feldman. Excellent research assis- tance for this article was provided by Brennen Johnson. Generous research funding was provided by the University of Washington School of Law and under a Leonardo da Vinci Fellowship from the Cen- ter for the Protection of Intellectual Property, George Mason University School of Law. All errors are the Author’s. Comments welcome at [email protected]. 1397 O'CONNOR.DOCX (DO NOT DELETE) 8/25/2015 9:25 AM 1398 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2015 E. The Beginnings of a European ‘‘Progress Project’’: the ‘‘Querelle’’ and the ‘‘Encyclopédie’’ .......................................... 1414 F. The Romantic Period ................................................................. 1433 G. The ‘‘Arts and Crafts’’ Movement ............................................. 1435 H. Design Beyond the Arts and Crafts Movement ....................... 1437 I. ‘‘Art’’ Becomes Synonymous with ‘‘Fine Art’’ in Popular Usage ........................................................................................... 1440 III. THE ROLE OF ‘‘ART’’ IN EARLY PATENT SYSTEMS ....................... 1443 IV. CONFUSION STEMMING FROM SHIFTS BETWEEN ‘‘ART’’ AND ‘‘SCIENCE’’/‘‘TECHNOLOGY’’ AS THE FOCUS OF THE PATENT SYSTEM ............................................................................................... 1447 A. Nineteenth Century Cases and Commentary Continue Mechanical Arts Sense of ‘‘Useful Arts.’’ ................................. 1448 B. The Turning Point: The Supreme Court Seeks to Define ‘‘Fine Art’’ ................................................................................... 1451 C. Three Waves of IP Clause Interpretation Affecting ‘‘Art,’’ ‘‘Science,’’ and the Patent System .............................................. 1454 1. The First Wave ..................................................................... 1455 2. The Second Wave ................................................................ 1462 3. The Third Wave ................................................................... 1464 V. FINDING THE LOST ‘‘ART’’ OF THE PATENT SYSTEM ................... 1470 A. Early Patent Systems .................................................................. 1470 B. The Scientific Revolution ........................................................... 1471 C. Post-Scientific Revolution Debate ............................................ 1473 D. The Danger in Substituting Terms ............................................ 1474 E. A Better Way Forward ............................................................... 1476 VI. CONCLUSION ..................................................................................... 1478 I. INTRODUCTION Many modern commentators assume that the patent system origi- nated to incentivize progress in science and technology. In the United States, this is often mistakenly attributed to the preamble of the Intellectual Property Clause of the Constitution (‘‘IP Clause’’): ‘‘Congress shall have Power . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.’’1 Today it seems natural to infer that promoting the progress of science would be done through exclusive rights for inventors’ discoveries, while promoting the progress of ‘‘useful Arts’’ would be left to exclusive rights to authors for their writings (and somehow the other fine and entertainment arts as well). This raises some questions as to the latter rights------why ‘‘useful’’ 1. U.S. CONST. art. I, § 8, cl. 8 (emphasis added to show preamble). O'CONNOR.DOCX (DO NOT DELETE) 8/25/2015 9:25 AM No. 4] THE LOST ART OF THE PATENT SYSTEM 1399 arts and why only authors and writings? But the patents-for-science part seems straightforward enough. At the same time, fundamental art-based terminology of the patent system------prior art, person having ordinary skill in the art, state of the art------continues to this day, only to be shrugged off or ignored as a mere curiosity or vestige.2 The intellectual worldview in the West long distinguished the me- chanical arts from both sciences and liberal arts (and later the fine arts). Patent systems emerged during the Renaissance to incentivize invention, disclosure, and commercialization of advances in the ‘‘useful’’ (i.e., prac- tical, mechanical) arts. In the United States, Madison and the Framers likely relied in substantial part on the famous French Encyclopédie con- struction of ‘‘art’’ as artisanal skill to authorize Congress to grant exclu- sive rights to promote the progress of such skills.3 Similar to Hamilton’s views expressed in his Report on Manufactures, the Framers seemed to have viewed artisanal manufacture and commerce as an important area of development for the new U.S. economy.4 But the concept of ‘‘technology’’ as science-based artisanal innova- tion that emerged in the nineteenth century led Congress, courts, and commentators to focus on science-based inventions.5 While not asserting these as the only patent eligible inventions, the various cases and com- mentary coincided with a constriction of the term ‘‘art’’ to mean only the fine arts in popular usage.6 Thus, by the twentieth century the term ‘‘art’’ became complicated as a descriptor for patent eligible invention. Fur- ther, a sense that such inventions needed to be based in ‘‘technology’’ spread throughout the patent community. But this attitude may have contributed to the misplaced views among some mid-century Supreme Court justices that inventions had to not only be technology based but also represent significant advances in the sciences to be patent eligible.7 While this was an extreme position rejected by other justices, Congress, and commentators, the notion that patent eligible inventions must be technology based has become quite resilient, resulting in the supposed ‘‘technological arts’’ test that is sometimes still cited as a measure of pa- tent eligibility.8 The problem is that a science or technology based patent system is both under and over inclusive for the sorts of inventions targeted quite 2. The United States Patent and Trademark Office itself has long organized its patent examina- tion corps into different ‘‘art units’’ representing categories of patentable subject matter. See Patent Classification: Classes Arranged by