Patents since the Renaissance (review)

The sixteen chapters of this print-on-demand book, whose author is a patent lawyer and former patent examiner in the U.S. Patent Office, are well-written, interesting—frequently even wryly entertaining—and certainly worth reading by anyone interested in patent system history. However, anyone wishing to pursue a particular topic it mentions will find that bibliographic references, although present, are in an idiosyncratic form that is not user-friendly, and are only loosely connected with the text.

Why study old patents and patent systems? Economic historians tend to count patents as a quantifiable proxy for inventiveness. Historians of technology tend to read patents as illustrative of technological change. Some historians, however, stand back to look at how a patent system is constructed; some stand back to look at how it operates. William J. Flynn is one of the latter, and he looks from a lawyer's viewpoint.

A basic question is how well a patent system balances the benefits and drawbacks to society of allowing temporary monopolies on items of "intellectual property." Opponents of patents deplore restrictions on use of an invention during its patent period, while proponents applaud the incentive that a temporary monopoly supplies to an inventor. Flynn assumes that the patent system (if operating as intended) does stimulate invention and increase society's stock of technology. He points out that the United States Constitution and patent laws leave the economic fate of an invention to the marketplace, while requiring the disclosure of novel and useful ideas in return for a patent's temporary monopoly.

Emphasizing case law rather than statutory law, and focusing mostly on the Supreme Court, Flynn complains of a stifling period in the twentieth century of judicial "hostility to what it calls the patent 'monopoly'" (p. v) in the United States. Introduced in the first chapter, this theme re-emerges in the final three chapters. Flynn concludes that "the country's turn away from science, technology, and industrial productivity in reaction to the Depression was an aberration that took hold of the Supreme Court and held on long after the Depression was over." Subscribing to C. P. Snow's description of contending "cultures," he writes that Supreme Court justices are "strongly influenced by the literary-artistic culture," and advocates that future justices act with appreciation of the scientific-technological culture in patent cases as well as the literary-artistic culture in copyright cases (p. 189).

In his second chapter, however, Flynn flashes back to "where it all began" in fifteenth-to-seventeenth-century Florence, Venice, Germany, France, and the Netherlands. Chapters 3 through 5 cover the adoption and evolution of England's patent system in the seventeenth and eighteenth centuries. Chapter 6 ponders the question of why a scientifically sophisticated France lagged behind England in industrialization, resorting to industrial espionage in order to copy English inventions in iron and textile manufacturing.

Except for a chapter about opposition to patents during the Industrial Revolution, which has a transatlantic scope, from chapter 7 on the book focuses on the operation of the American patent system since 1790. Historians of American technology will recognize much of the material, but will also benefit from Flynn's particular slant. He discusses changes, by lawyers and judges in patent litigation, of the legal definition of such terms as "invention," "method," "principle," "new combination," "sufficiently useful," and "ordinary skill and ingenuity." Besides twentieth-century judicial hostility to patents, Flynn criticizes earlier American judges, in particular Justice Joseph Story, for continuing to regard English patent cases as valid precedents even though the United States Constitution had severed the two legal systems.

This book would be a good addition to reading lists for undergraduate courses in history of technology, for it provides a fresh look at inventions, inventors, politicians, and judges and supplies anecdotes that go beyond what textbooks usually say about them. For instance, in addition to Mark Twain's disastrous investment in the Paige typesetter, he gambled on more than a hundred other inventions, including one...