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The British Patent System during the Industrial Revolution 1700–1852: From Privilege to Property

0 Comments 🕔19.Nov 2015

At the core of Sean Bottomley’s valuable new contribution to the debate over the historical significance of the British patent system(s), The British Patent System during the Industrial Revolution 1700-1852: From Privilege to Property, is a reassessment of over 150 years of litigation and the case law on patents of invention that emerged from it. The legal foundation of the English patent system was the Statute of Monopolies of 1624 (21 Jac. I, c.3), itself the outcome of a bitter political dispute over the Crown’s abuse of its prerogative powers in granting licenses of monopoly to its creditors and royal favorites. While restraining this prerogative, the statute explicitly exempted patents for new inventions (i.e. “new manufactures within this realm”) from its general proscription of monopolies: it restricted patents to a term of fourteen years; it stated they must not contravene the public interest (i.e. not be “mischievous to the State”) in various ways; and it required that any cases concerning them should be tried and determined by common law. This minimalist statutory foundation persisted without significant reform until the passage of the Patent Law Amendment Act in 1852, which for the first time established a patent system for the entire United Kingdom, brought its administration into a dedicated Patent Office, and instituted a standardized set of fees that reduced the initial payment from approximately £100 for an English patent, or approximately £350 to include Scotland and Ireland, to £25 (still half a year’s wages for many working men). In the meantime, the patent system had evolved primarily through the administrative changes introduced by the Crown’s law officers (the Attorney and Solicitor General), who had been responsible for scrutinizing all petitions for patents to check their prima facie conformity with the Statute of Monopolies, and through the judicial decisions of the common law courts, which put flesh on the statutory bones – even if the judiciary’s mutual disagreements and contradictions produced something more akin to Frankenstein’s (contemporary) creature than to a perfect Adam (pace Bottomley’s revisionist arguments).

Sean Bottomley builds on and contests a historiography that chiefly dates from the 1980s: Harry Dutton’s The Patent System and Inventive Activity During the Industrial Revolution, 1750-1852 (Manchester, 1984) and this reviewer’s Inventing the Industrial Revolution: The English Patent System, 1660-1800 (Cambridge, 1988). New resources, especially Peter Hayward’s publication of the thirteen volume Hayward’s Patent Cases: 1600-1883, (Abingdon, 1987) and the recently improved catalogues and indexes of Chancery court records at the National Archives, allow Bottomley to expand and revise the legal history of “British” patents and to provide a full and detailed account of the complexities of litigation, which helpfully includes the parallel but much smaller Scottish and Irish systems and the problems of overlapping jurisdictions (a prelude to today’s “West Lothian” question). In particular, he is able to fill the puzzling gap in cases at common law during the early eighteenth century and thereby re-date the waning of the Privy Council’s jurisdiction back sixty-five years to the Glorious Revolution of 1688. More controversially, he argues that this marks the beginning of the shift “from privilege to property,” in which patents were transformed from insecure royal grants into items of intangible property recognized by the eighteenth-century law courts and en route to the status of “intellectual property rights” beloved of today’s neo-liberal lawyers.

Bottomley’s second major challenge to the historiography of litigation rests on his recalculation of Dutton’s figures of the outcomes of 257 patent cases between 1770 and 1849 that led Dutton to identify a major break occurring around 1830 (34 percent of cases won by patentees, in the three decades from 1800 to 1829, doubling to 69 percent won by patentees between 1830 and 1849). Having discovered verdict information on a further 144 cases, Bottomley reduces this leap to a gentler increase from 48 percent of cases won by patentees between 1800 and 1829, to 59 percent won by patentees between 1830 and 1849 (table 3.1, p. 82). Although this still represents a 25 percent increase in pro-patentee verdicts, Bottomley dismisses entirely Dutton’s findings and his surmise that this statistical shift indicates a decline in judicial prejudice against patentees (as monopolists and “projectors”). However, neither does Bottomley address Dutton’s extensive anecdotal evidence from the 1830s, when both independent commentators and judges themselves remarked on patentees’ recent rise in esteem among both judges and juries and their consequent improved fortunes in court (Dutton 78-9). Unfortunately, this is typical of much of Bottomley’s style of argument: he argues more like a barrister, beefing up tenuous evidence and selectively ignoring inconvenient information or his witnesses’ reservations, and less like a historian trained to keep supposition at bay and not go beyond what the evidence will bear. Another egregious example of this is Bottomley’s misrepresentation of Dutton’s careful investigation of inventive activity in the pin industry between 1830 and 1835 (North and Thomas 126-30).  Bottomley cites only the case of Lemuel Wright, who found financial success with his pin-making machine once he had patented it (208), ignoring not only the setbacks suffered by Wright in the five years, 1824-29, before he managed to sell his patent, but also the four earlier patentees who had failed to sell their pin-making inventions despite patenting them. I would also add that a reference to one patent official moonlighting as a patent agent from 1770 (forty to fifty years before most early patent agencies claimed their origins) does not demonstrate that the multiple administrative obstacles to filing a patent in Whitehall’s labyrinth were suddenly swept away and the Georgian would-be patentee could stay home and post his application, confident that his agent would save him the bother and expense of up to six months’ dancing attendance on officialdom in London.

Bottomley wants to restore his well-oiled patent system to playing the pivotal role in the British industrial revolution, famously canvassed by Nobel laureate Douglass North: “by 1700 . . . England had begun to protect private property in knowledge with its patent law.  The stage was now set for the industrial revolution” (155-6).  Dutton was sympathetic to this view while suggesting that the system’s weaknesses (especially in the courts) made it more effective, as both incentive to invent and a leaky vessel to disseminate innovation, than a tighter ship might have been. This reviewer has always been more skeptical, arguing that the eighteenth-century patent system created its own logic, forcing inventors (especially of easily imitated machinery) to patent defensively, in order to pre-empt exclusion from their own inventions, and has emphasized the many technological advances which helped to constitute “the industrial revolution,” such as mining (except its steam pumps and other drainage engines), machine tools, agriculture, and civil engineering, that scarcely caused a ripple in the eighteenth-century patent system. Would British inventiveness and its industrial revolution have stalled without its patent system? Does history have anything to say to the modern world’s pursuit of “intellectual property rights”? Bottomley’s most strident opponents, economists Michele Boldrin and David Levine (Against Intellectual Monopoly, Cambridge, 2008) open their case for the abolition of all patents and copyrights today by citing James Watt’s extended patent for the separate condenser (a major fuel-saving improvement to the steam engine, the patent in force 1769-1800). Did Watt’s patent hasten the industrial revolution? No, say Boldrin and Levine; it obstructed the industrial revolution. Does Bottomley overturn their case (247-65)? Let’s say the jury’s still out. But it’s good that the jury’s on the case, much more actively now than back in the 1980s.

Reviewed by Christine MacLeod, University of Bristol

The British Patent System during the Industrial Revolution 1700–1852: From Privilege to Property
by Sean Bottomley
Cambridge University Press
Hardback / 336 pages / 2014
ISBN: 9781107058293

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