The Paradoxes of Patenting: Invention and Its Diffusion in 18th- and 19th-Century Britain, France, and North America

This article deals with a period of transition for most patent systems in Europe and North America, from instruments of royal prerogative power to specialized and statute-based weapons of capitalist competition. Until 1852 England was still using a patent system established three centuries before, in the reign of Elizabeth I, and statutorily modified only by a clause of exemption in the Statute of Monopolies (1624) and a modest reform in 1835. Like a plant inherited by a reluctant gardener and allowed to grow without pruning or feeding, its evolution was more the product of government indifference than of any economic policy. Increasingly criticized for both inefficiency and injustice, the patenting ancien regime nonetheless survived through to 1852, and in some respects beyond. By contrast, in 1790-91, as a result of political revolutions, both France and the United States had established patent systems based on positive statute law and embodying the concept of an inventor’s natural right to his intellectual property. Moreover, both had since restructured their systems, once in the case of France (1844) and twice in the case of the United States (1793, 1836). In the same half century most other European countries had also enacted new patent laws. Ironically, the French system after 1791 and the American system between 1793 and 1836 came closer in practice to the English system-in particular, by abandoning formal examination in favor of simple registration.

Christine MacLeod

Technology and Culture

October 1991

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