Edward C. Walterscheid.
To Promote the Progress of Useful Arts: American Patent Law and
Littleton, Col.: Fred B. Rothman & Co., 1998. xii + 516 pp. Appendixes and
index. $75.00 (cloth), ISBN 0-8377-1354-4 .
Doron Ben-Atar , Fordham University.
Property in the Early Republic
To Promote the Progress of Useful Arts
chronicles the legislative and administrative history of the American
patent law from the Constitution of 1787 to the Patent Act of 1836. It is
an uneven work. Well-researched and rich in detail, the book lacks
direction and cohesion.
Edward C. Walterscheid of Los Alamos National Laboratory
begins by examining a fascinating question: why did the United States
Constitution specifically order the new central government to promote the
progress of useful arts? The framers have left us little by way of
explaining their reasons for writing the intellectual property clause into
the Constitution. Why, for example, didn't they specify banking policy or
internal improvement, both of which would have to fall under the
"necessary and proper" clause, yet insisted on promoting knowledge and
even specified that it should be done by securing exclusive rights for
inventors for a limited time? Walterscheid believes that the founders'
desire "to follow the English practice" (p. 36) was crucial to their
decision. Yet, there is no record of any delegate who said so
specifically. Given the way the framers felt about England's political
economy, why would they want to enact a policy that would lead to its
emulation in the American republic? After all, didn't they embark on the
Revolution precisely because they sought to bring to a halt the
Anglicanization in their midst?
The decision to insert the intellectual-property clause
into the Constitution originated, then, not in the desire to emulate
Britain, but in local conditions. Here Walterscheid focuses on two
factors: the Philadelphia context and the Fitch-Rumsey steamboat battle.
By 1787, Philadelphia was the center of the American industrialization
effort. The city's elite had concluded that technological deficiencies
undermined the region's ability to develop local manufacturing and
supported the improvement of American know-how by means that were not
always kosher. Walterscheid suggests that Philadelphian Tench Coxe, an
outspoken proponent of American manufactures, made a speech on August 9,
1787, that persuaded Madison to include the intellectual property clause
in the Constitution. Perhaps? The competition between John Fitch and James
Rumsey over who owned the rights to the steamboat was a prominent feature
of the era's politics. Just about every leading American seems to have
taken side with either Fitch or Rumsey. In late August 1787, just a couple
of days after the intellectual property issue was first raised at the
convention, Fitch demonstrated his steamboat to some of the Convention's
delegates. Walterscheid acknowledges that although "[w]hat was discussed
between Fitch and the delegates is not known,... it is likely that he
[Fitch] sought some means of obtaining exclusive rights through the
federal government (pp. 43-44)."
Whether Fitch, Coxe or someone else was crucial to the
inclusion of the intellectual property clause in the United States
Constitution remains a mystery. The consensus in favor of the clause
suggests widespread cultural acceptance of the measure. In other words, no
one in particular had to push the delegates to include it in the
Constitution. Clauses promoting useful knowledge existed in the colonial
charters and the states' constitutions. Americans may have assumed that a
similar provison would become part of the new national pact. That the
clause attracted little to no attention in the heated ratification battles
may testify to the latter as the most plausible explanation.
The patent acts of 1790 and 1793 stand out among
eighteenth-century patent laws in their strict insistence on both
originality and novelty. The English patent law, in contrast, was enacted
to attract superior European craftsmen to the kingdom. Men who introduced
technological innovations hitherto unknown in England were rewarded with
production monopolies. Introducers received patents of importation and
enjoyed all the privileges of original inventors. The first United States
patent law, however, restricted patents exclusively to original
inventors--prior use anywhere in the world was grounds for invalidating a
patent. This criterion is particularly puzzling because the young nation
needed to import technology to develop its industrial base. Moreover, the
two most important members of the Washington administration, President
George Washington and Secretary of the Treasury Alexander Hamilton,
supported granting patents of importation.
Walterscheid examines in great detail the legislative
process leading to the passage of the 1790 Act. Future students of the
subject will greatly benefit from his thorough examination of every
speech, essay, and petition. In his previous work
Walterscheid argued that a petition from Philadelphian Richard Wells
dissuaded Congress from allowing patents of importation. In this book
Walterscheid acknowledges the unlikelihood that a petition from an
individual with no particular political clout carried more weight in
Congress than the specific recommendation of a President as powerful and
popular as Washington. Constitutional considerations, he now believes,
moved members of Congress to reject the President's instructions and
establish strict patenting criteria in America.
Walterscheid's explanation exposes the limits of the
formalistic constitutional and statutory approach. Textual examination of
the law may lead scholars to conclude that the young republic rejected
piracy of ideas and established a new intellectual property moral code.
Reality, however, was different. For all the highfalutin insistence on
originality and novelty, technology pirates filed for and received patents
from the United States government, even when it was known, as in the cases
of William Pollard and George Parkinson, that they pirated rather than
invented the machinery. The patent board, composed of the Secretaries of
State and War and the Attorney General, declined to examine in what way
American claims differed from European patents. As Walterscheid writes,
the board's purpose "was to ascertain the nature of the invention; no
attempt was made to determine whether it was novel, i.e., `not before
known or used' (p. 179)." Finally, no legal restrictions were placed on
immigrants like Samuel Slater who established factories in the New World
using pirated British technology, but who did not file for patents.
The 1790 Act instructed the patent board to decide on the
merit of each and every application. This requirement became too
burdensome particularly for Thomas Jefferson who, as Secretary of State,
was put in charge of the entire project. The 1793 Act relieved members of
the cabinet from wasting their time examining individual patents. A
registration system, modeled after the English practice, was put in its
place. The Secretary of State remained in charge of issuing patents, but
it now became "a pro-forma process dependent only on the completion of the
required ministerial acts by the petitioner for patent (p. 225)." On the
matter of patents of importation the revised system maintained the dual
demand for novelty and originality, and each patentee was required to take
an oath that he was indeed the first and original inventor.
The statutory requirement of worldwide originality and
novelty, however, did not hinder widespread and officially sanctioned
American technology piracy. William Thornton, the first Supeintendent of
Patents, who administered the office from 1802 to 1828, did not insist on
the oath of international novelty. The Act specifically prohibited
foreigners from obtaining patents in America for inventions they had
already patented in Europe. This meant that, whereas United States
citizens could not petition for introducers' patents, European inventors
could not protect their intellectual property in America. The United
States government, then, sanctioned technology piracy as long as imported
technology was not restricted exclusively to any particular individual
In a particularly insightful section, Walterscheid explores
how the constitutional provision aimed at promoting useful knowledge for
the benefit of the public at large was turned, under Thornton's
administration, into an aggressive assertion of knowledge as individuals'
property. Thornton believed that he was the guardian of the rights of
patentees and, against executive and judicial instructions, blocked public
access to the details of patents. Placing himself as judge, jury, and
executive of all matters relating to patenting in the land, Thornton
insisted on the secrecy of registered patents, thus privileging the
interests of individuals over those of the community. Unfortunately,
Walterscheid does not delve deeper into the following paradox: why did the
law privilege the inventor over the public in the Jeffersonian era of
supposed republican communalism and turned in the opposite direction in
1836--when capitalism and individualism reigned supreme?
I found reading through the narrative difficult. More
careful editing would have reduced the frequent repetition of ideas,
sentences, and quotes. Each chapter is chopped into many idiosyncratic
sub-sections of various lengths, some as short as one paragraph.
Walterscheid approaches legal history in a rather old-fashioned way, with
lengthy discussions of the legislative process and close analysis of
administrative minutia. He tries to pin down the intent of the
legislators, as if a collective legislative intent exists. At times, when
Walterscheid finds no evidence to support a point, he is not reluctant to
speculate about what "must have been" rather than what was. At other
times, he uses decisions and treatises written decades after the passage
of an Act to explain legislative intent, even though nineteenth-century
commentators had no greater knowledge than we do about legislative intent
and were merely interpreting the record.
For all its flaws, this is a useful book. To be sure, it is
a difficult read, without an overarching historical argument about change
through time. All the same, future scholars of American patent laws are
advised to turn to it as the starting-point for their research. The notes
in themselves are a rich resource. And the fifteen appendixes in which
Walterscheid reproduces the various patent acts from 1789 to 1836 make the
issues accessible to students of early national law. A product of years of
exhaustive research To Promote the Progress of Useful Arts contains
much useful information about the first fifty years of American patent
E. C. Walterscheid, "Novelty in Historical Perspective, (Part II),"
_Journal of the Patent and Trademark Office Society, 77 (1993), 781-782.
Library of Congress
Call Number: KF3114.W35 1998
* Patent laws and legislation -- United States --
* Patent practice -- United States -- History.
* Patents -- United States -- History.
Citation: Doron Ben-Atar . "Review of Edward C.
Walterscheid, To Promote the Progress of Useful Arts: American Patent Law
and Administration 1798-1836," H-Law, H-Net Reviews, January, 1999. URL:
“To Promote the
Progress of Useful Arts is well written and details the early, chaotic
days of the development of U.S. Patent Law… [T]he book was an eye-opener
to this reviewer. It not only destroyed a number of commonly cherished
myths about our patent system, it also demonstrated how many of the
problems that faced our forefathers are identical to those facing us
review of To Promote the Progress of Useful Arts: American Patent Law
and Administration, 1798-1836, by Edward C. Walterscheid,
Knowledge, Technology & Policy 12 (Summer 1999): 75-76.