The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790–1920 (review)

This book is a legal and economic history of intellectual property (IP) institutions in the United States during the "long nineteenth century," examined "in the mirror of European experience" (p. 29). B. Zorina Khan, an economist, uses the cliometric approach to investigate a wide range of data sources including patent records and assignment contracts, infringement lawsuits, city directories, biographical dictionaries, publishing data, and copyright filings. Khan is interested in understanding how U.S. patent and copyright policies differed from those of contemporary European nations while assessing their impact on economic growth during the decades of industrialization.

In France and Britain, patents were grants of monarchial privilege conferred only on wealthy elites. High registration fees meant that inventors patented major, capital-intensive inventions but not incremental improvements, effectively discouraging continuous innovation. Plus, European patents were precarious and could be overturned by an unpredictable judiciary or revoked by the Crown. In contrast, the U.S. system was an impersonal bureaucracy. After 1836, a merit-based examination system awarded patents to the "first and true inventor"—even women, slaves, and humble, ordinary citizens. Unlike the British system, U.S. registration fees were modest and patent specifications were publicly accessible, encouraging continuous improvements and technological diffusion. Furthermore, the early federal courts affirmed that patents were a secure form of property, a tradable capital asset that inventors could sell, license, or exploit themselves through manufacturing. The result of these policies was the "democratization of invention."

Khan analyzes a sample of U.S. patents from 1790 to 1846 and links them to biographical information in city directories. She finds that expanding domestic markets led to an increased rate of patenting, as ordinary American citizens, not just professional technicians, availed themselves of the economic opportunities presented by the patent system. The increased rate of patenting was largely attributable to "low-commitment" inventors (p. 127), one- and two-time patentees who possessed moderate technical skills generally present throughout the population. Here Khan challenges "supply-siders" like Joel Mokyr who suggest that the rate of inventive activity is exogenous to market conditions and increases only when inventors of special genius expand the stock of available knowledge via blockbuster "macro-inventions." Instead, Khan, in the tradition of Jacob Schmookler, finds that increased patenting was spurred by market demand: democratic patent institutions—endogenous to economic growth—enticed a broader segment of the American population to become inventors.

In testing her democratization thesis, Khan shows that, in an undemocratic era of women's disenfranchisement, American women nevertheless took advantage of a patent system that did allow them to own and exploit their intellectual property. Then Khan challenges supply-siders directly, embarking on a prosopography of "great inventors." She demonstrates that even inventive "geniuses" were motivated by market concerns, but here the exercise seems somewhat tautological. Weren't "great inventors" included in biographical encyclopedias precisely because their entrepreneurial talents ensured wide acceptance of their inventions? Cautious readers should consult Christine MacLeod and Alessandro Nuvolari's "Pitfalls of Prosopography: Inventors in the Dictionary of National Biography" (Technology and Culture 47 [October 2006]).

While the United States featured strong patent protections during the nineteenth century, its contemporary copyright protections were among the weakest in the world. America offered only fourteen years of copyright protection, allowed liberal "fair use" provisions, and provided no protections for foreign authors. Khan argues that these policies were specifically attuned to the needs of the new republic, encouraging free speech and facilitating the open exchange of news, maps, and educational materials. Moreover, the legal "piracy" of foreign books stimulated an imported literary culture until American authors could establish their own indigenous traditions.

During the nineteenth century, the United States became involved in efforts to "harmonize" international IP laws, lobbying for strong patents, but balking at strong copyrights. In short, the United States favored policies that fit its particular stage of economic and cultural development. This is somewhat ironic, given...