The Power Of Patents
For two hundred years the United States patent system has defined what is an invention and protected, enriched, and befuddled inventors. As a tool of corporate growth in a global economy, it is now more important than ever.
September/October 1990 | Volume 41, Issue 6
Not only has the office moved, but the definition of what constitutes an invention has also undergone change. In the early years of the nineteenth century, it was decreed that an invention must be useful as well as new. It must also be generally beneficial to society, not “mischievous or immoral,” as one judge put it. In 1880 a new standard was added: The invention must be not only new and useful but the result of a “flash of genius” that made it a new departure, a scientific breakthrough. Although difficult to define, the “flash” concept remained in force until the middle of this century, when it was finally abandoned as too diffuse. A new patent law in 1952 established a kind of negative but workable standard that holds today. It requires an invention to be “nonobvious”; it must be a departure that would not have occurred to the average person who had ordinary skills in the art or technique. Inventions are special.
During the nineteenth century a tremendous number of important patents were granted to such now-famous inventors as Cyrus McCormick, Samuel F. B. Morse, Charles Goodyear, and, of course, the giant of them all, Thomas A. Edison, who holds the record for the number of patents granted a single inventor, a total of 1,093 (Edwin Land is a distant second, with 533). It was a time of tremendous technological advance, with patents being awarded to the likes of Henry Bessemer (steel process, 1856), George Westinghouse, Jr. (air brake, 1869), and also such pioneers as Walter Hunt, who invented the safety pin, Alvin Fellows, who introduced the tape measure, and John McTammany, Jr., who gave us the player piano.
Not many of these pioneers were good businessmen, and some were downright sloppy. Charles Goodyear, for example, who in 1839 discovered the process for vulcanizing rubber, carelessly permitted his invention to be used in products for which it was not suited, lent his meager funds to irresponsible friends, and foolishly agreed to pay Daniel Webster the outrageous sum of fifteen thousand dollars to represent him in court; more than once he languished in debtors’ prison. Goodyear’s court cases were a clue to what was happening to the inventor’s world: safeguarding a patent could be difficult and generate severe legal costs, and not many inventors were good at handling such matters. Noninventors could often do it better.
Indeed, the economic scene was shifting. Most notably, the manufacturing world was getting more and more complex—and expensive. Furthermore, a company set up to produce a new invention had to keep finding new products and improvements in order to flourish. But the new breed of businessman, the industrialist, was finding that the discovery of new products could not really be left to chance. If businessmen simply waited for inventors to offer new discoveries, they would surely lose out; inventions would have to be generated. In addition, new devices required a huge amount of money to develop and market, which no one wanted to waste, and their success had further to be protected so investors’ hard-earned money would not be jeopardized by some damn fool’s new invention suddenly appearing out of left field. The care and feeding of patents became a key element in corporate strategy.
Another thing being discovered was that a great new invention was of little use all by itself. It almost always required a host of ancillary inventions before it could be practical. Bell’s telephone, for example, necessitated the inventing of all manner of switching devices, amplifiers, transformers, and transmission mechanisms. Inventing a workable gasoline engine did not result in the motorcar until gears, brakes, steering, and other items were made workable. Often the original inventor was unable to solve these problems or was otherwise not in the picture. Someone else had to attend to it.
Finally, the new industrialists were quite taken with the idea of monopoly inherent in the patent laws. If a corporation controlled the key patents in its industry, it could command the market. As one observer has noted, “A patent of wide and controlling scope gives the inventor, or more often the corporation which buys up his patent, an instrument for dominating the interlocking provinces of technology, industry and commerce.” Mark Hanna, the great turn-of-the-century Ohio capitalist and Republican boss, put it more succinctly. “The only real monopoly,” he said, “is a United States patent.”