Intellectual Property Law Knowledge Center

From Thomas Jefferson to Michelle Lee; 225 Years of U.S. Patent Law

December 3rd, 2015

225AnniversaryPatentAct_paddingAs anniversaries go, it may lack the cachet of the 800th anniversary of the Magna Carta or the upcoming 2026 U.S. sestercentennial. But for anyone whose work pushes the boundaries of what mankind once thought possible – from automobiles to antibiotics to Amazon’s Kindle – 2015 brought a big one: the 225th anniversary of the U.S. Patent Act of 1790.

The need for patent protection seems obvious to us today, but in the late 18th century, the very notion that an invention’s creator should automatically own intangible rights to that invention was itself novel. For centuries, with a few exceptions, the only such “rights” that could even be compared to modern patent protection were franchises granted by a monarch – usually exclusive permission to harvest a specific resource or provide a specified product or service to a particular region. In exchange for the franchise, the monarch typically would receive financial support (thus ameliorating the need to levy unpopular taxes).

This tradition was gradually eroded during the Renaissance. In the early 17th century, the English Parliament passed the Statute of Monopolies, which greatly restricted the Crown’s ability to grant franchise-style exclusivity. This law provided the original model for patent protections within the U.S. Constitution and the eventual Patent Act of 1790.

The Foundation of Patent Protection

Under this first American patent law, inventors were required to submit their work to the scrutiny of either the Secretary of State, the Secretary of War (the forerunner of today’s Secretary of Defense), or the U.S. Attorney General. That person would then decide whether to “deem the invention or discovery useful and important” and, if they did, to issue a patent letter.

Those patent letters next needed to be certified by the Attorney General, who then brought them to the President of the United States — George Washington — so that he could “cause the seal of the United States to be thereto affixed.” The patent was then recorded in a book kept by the Secretary of State.

As one might imagine, this patent system did not scale particularly well to the intellectual property needs of a populace that was busily creating solutions to the various problems of building a new civilization. The 1790 law lasted for only three years

Thomas Jefferson to the Rescue

Enter Thomas Jefferson. Jefferson, whose earlier works included the Declaration of Independence, was Secretary of State and thus the keeper of the ledger which recorded all the patents filed under the original Patent Act. He was thus perhaps uniquely placed to recognize the shortcomings not only of the patent approval process but of the subjective nature of patentability as it was then understood.

In revising the fledgling country’s patent law, Jefferson sought to define more precisely what was patentable. He succeeded.

Jefferson defined patentable material as “any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter, not known or used before the [patent] application.”

That wording remained in place until 1952, when “art” was replaced by “process” (which itself is defined as a “process, art or method”). Aside from that minor tweak, Thomas Jefferson’s words continue to guide inventors, intellectual property attorneys, and patent authorities today.

In her April 2015 remarks honoring this 225th anniversary, USPTO director Michelle K. Lee noted, “Fostering the creative and entrepreneurial environment that made the evolution of the laser—and so many other technologies—possible, remains the central promise of the Patent Act of 1790 and the progress clause of our Constitution. And ensuring that our nation’s patent laws continue to spur that kind of innovation remains one of the key missions of the United States Patent and Trademark Office, now in its third century of existence. I’m very proud of that mission, proud of all those here who perform it, day after day, and proud to lead this great agency.”

The intellectual property lawyers at Panitch Schwarze are similarly proud to have collectively dedicated hundreds of years of practice to IP law. We are proud to obtain and protect the rights of the innovators who continue to drive today’s economy. From prosecuting patent applications to guiding business owners through the process of registering a trademark to representing clients in patent, trademark and copyright infringement matters in the United States and worldwide, Panitch Schwarze Belisario & Nadel stands ready to continue its efforts to protect tomorrow’s technologies.

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