Invented by Law: Alexander Graham Bell and the Patent That Changed America by Christopher Beauchamp (review)

One could say that the historical process of creating a useful "invention" is like a three-legged stool, requiring the efforts of various practitioners. "Inventors" researched, built models, and made trials to coax an idea into life. Financial backers provided funds and dangled profits. And lawyers secured and defended patents, which could be applied directly or monetized (sometimes weaponized) as intellectual property. By now we know quite a lot about inventors and, to a lesser degree, their financial backers. That third leg, though, has stayed pretty much invisible to the outside world. Christopher Beauchamp describes patent law as "one of the industrial world's most opaque and quietly powerful branches of jurisprudence" (3). His superb book examines the role of lawyers and the law in creating and sustaining one of the most economically significant—and litigated—patents of all time and its wide effects on the development of technology-based capital enterprises in the United States.

To say that lawyers helped create Alexander Graham Bell's fundamental telephone patent drastically understates both the lawyers' importance and the book's ambitions. The lawyers' job was not simply to draw up the specifications and then await inevitable legal challenges. Beauchamp shows convincingly that the scope of the patent was wildly unstable until it was contested in court, subjected to broad arguments about the nature and limits of monopoly, and interpreted by judges, all in the context of larger judicial and political debates. Indeed, it was that long judicial process that fused a tangle of electrical knowledge, primitive devices, and technical refinements into a unified notion of "the telephone." Beachamp engages both the heroic literature celebrating Bell as "the inventor" and a recent iconoclastic tradition focused on the skullduggery and malfeasance behind the patent. But he aims for a third ground, broader and higher: "that patent law—so often dismissed as an arcane and impenetrable niche of legal practice—has played an active and controversial role in the course of American history" (4). The one thing shared by a great majority of nineteenth-century American inventors was their contact with the legal profession. Patent disputes were an important part of antebellum legal practice—Abraham Lincoln and at least three members of his cabinet, Beauchamp points out, were involved with major cases. After the Civil War, such contests filled federal court dockets. No wonder, since by their nature they raised questions about how far the state should go in sanctioning monopoly privileges at the expense of public rights—a hot-button constitutional question. Beauchamp argues persuasively that "Patents were and are highly malleable legal artifacts, capable of being constantly shaped and reshaped" (47) and that they were interpreted not merely according to technical considerations but by how they fit into a spectrum of judicial tolerance for monopoly privilege.

Beachamp takes for granted some familiarity with the basic telephone devices of Bell and Thomas Edison and does not get bogged down in technical details. He makes no such assumption about American patent law, however, and the first chapter is a lucid brief on its constitutional basis, its uses, and its abuses in contemporary practice. The second chapter, devoted to Bell's work and its context in the telegraph industry, opens with the admonishment that the telephone story began not with an invention but "when a small group of entrepreneurs, including Alexander Graham Bell, formed a company for the purpose of seeking improved methods of telegraph transmission" (35). Bell's device and the legal protections erected around it, in other words, were inseparably tied to a particular organization of capital in ways that would profoundly affect the development of the telephone business. The next two chapters delve into a handful of legal contests in the United States and Great Britain. They deftly show how an ascendant mythology of the heroic inventor swayed jurists (not only in Bell's case) to show...