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6.9.2004
Deja Vu Again -- This Time on Patents
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Speaking of lessons the 19th Century has for the 21st, anyone puzzling over the problems of patents in the Internet Age can gain perspective by looking at the equivalent problems in the Railroad Age, as described in Steven W. Usselman, Regulating Railroad Innovation: Business, Technology, and Politics in America, 1840-1920.
Then, as now, explosive technological, financial, and institutional change created the climate for a great burst of creativity. Then, as now, the Patent Office was accused of certifying everything that came in the door, and complaints of over-reaching and fears of gridlock abounded. Then, as now, standards of obviousness needed re-thinking -- what was truly new and what was within the grasp of anyone skilled in the art, only some grasped it a little more quickly than others?
These issues were bitterly fought for years, and in the end the Supreme Court circumscribed patentability somewhat, noting in Atlantic Works v. Brady (107 U.S. 192 (1882) (per Mr. Justice Bradley):
"The process of development in manufactures creates a constant demand for new appliances, which the skill of ordinary head-workmen and engineers is generally adequate to devise, and which, indeed, are the natural and proper outgrowth of such development. Each forward step prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different places. To grant a single party a monopoly of every slight advance made, except where the exercise of invention, somewhat above ordinary mechanical or engineering skill, is distinctly shown, is unjust in principle and injurious in consequences.
"The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges thuds [sic - serves(?)] rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith." (pp. 199-200)
Not being a patent lawyer, I do not know the current status of Brady. Since 1964, it has been cited not at all by the Supreme Court and only half a dozen times by the Courts of Appeals. It is not mentioned in the casebook on my bookshelf, nor is it reprinted anywhere except in the proprietary legal databases, such as Lexis. All this tends to the conclusion that its authority has been obviated by statutory changes.
But in stating the problem, and the correct conclusion -- albeit at a general level -- Mr. Justice Bradley is hard to beat.
posted by James DeLong : 6/9/2004 11:19:04 AM
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