Historical Background of U.S. Patent Law
The U.S. Constitution (Article 1, Section 8) granted Congress the power to enact patent and copyright laws. The first Congress established a patent system in 1790. A full revision of the U.S. patent laws was recently enacted in 2011. The previous full revision was enacted in 1952, and several partial revisions were enacted between 1952 and 2011. These laws establish the requirements for obtaining a patent in the U.S. The patent system has been a fundamental factor in influencing the growth of commerce, industry and prosperity in this country.
The word “patent” derives from the Latin phrase, “litterae patentees,” which means open letters. The concept of disclosing and practicing new ideas or skills to the exclusion of others having such rights for a limited term is the foundation of our modern patent system.
The granting of certain rights in exchange for technological and creative contributions to society dates back to biblical times. It has been written, for instance, that in the Greek colony of Sybaris, in 500 B.C.E., if a Sybarian cook or confectioner invented an unusual or outstanding dish, then no other cook was permitted to prepare the same dish for a term of one year.
An early written statute or law granting patents to inventors for their technical creations was adopted in Venice, Italy, in 1374 C.E. Although the original Venetian statute is only one page in length, it accurately recites the central concept that remains a driving force of modern patent law; i.e., the exclusive right to use the idea for a limited term shall reward disclosure of a new idea.
In the 15th century, English royalty began to bestow patents upon craftsmen to encourage them to settle in England. In 1624, the English “Statute of Monopolies” was passed during the reign of James I in order to formalize the requirements and procedure for obtaining patents. Around the time of Queen Elizabeth, in order to distribute new technologies more quickly, the filing of a written description or “specification” of the invention with the Court of Chancery became a requirement for obtaining a patent grant, i.e., the right to exclude others from a trade or practice.
From 1680 to 1780, only 800 patents were granted in England, including Arkwright’s water-powered spinning machine, Hargreaves’ spinning jenny and other pre-industrial revolution inventions. The stage was set for the growth of the industrial revolution in Europe.
Historical Growth of Patent Law in the United States
Before the Revolutionary War, the American colonies individually developed their own patent grants based on English law. The Articles of Confederation, predecessor to the 1787 U.S. Constitution, did not contain language regarding patents. Thus, state patent systems remained until 1790, when our present Constitution was in force and George Washington signed the first U.S. patent law based on the Constitution. The Constitution and resultant law recognized a patent as an inventor’s fundamental and essential property right.
The first patent was issued on July 31, 1790, to Samuel Hopkins for “Making Pot and Pearl Ashes.” Three patents were issued in 1790, and 55 patents were issued by 1793. Design patents were created in 1842, and the term of a patent was lengthened from 14 years to 17 years in 1861. Congress established plant patents in 1930.
Example Patent: Cotton Gin (Download Full PDF Here)
Early patent commissioners like Thomas Jefferson personally examined petitions and granted patents for a statutory 14-year term, borrowed from Elizabethan era English law. Benjamin Franklin donated his inventions to the public domain without patenting. Abraham Lincoln is the only president to receive a patent, No. 6,469 for “A Device for Buoying Vessels over Shoals.” Lincoln later remarked, “The patent system added the fuel of interest to the fire of genius.”
Example Patent: Bicycle (Download Full PDF Here)
The Patent Act of 1952 essentially codified the patent law as it was known at the time. After that and before 2011, two major developments strengthened the U.S. patent process. First, in 1982, Congress created the Court of Appeals for the Federal Circuit to review, clarify and unify the interpretation of U.S. patent law. Before the inception of the Federal Circuit, many courts interpreted U.S. patent law in different ways, leading to inconsistencies and confusion. Second, in 1988 and 1996, Congress strengthened the remedies available to patent owners suffering from the importation of infringing goods and made it easier to sanction nations without strong reciprocal patent protection.
The America Invents Act of 2011 (called the “AIA”) brought U.S. patent law into the modern age. It moved to a system in which, with few exceptions, the first person to file a patent application on an invention is considered to be the first inventor of the invention, regardless of claims of others that they invented separately and first. Those who can make that claim, however, may in many situations prove as a defense to a claim of patent infringement that they are legitimate prior users with rights to continue their uses. Numerous additional changes were made to the law and will be explained hereafter.
U.S. Patent No. 1,000,000 issued in 1911, followed by No. 2,000,000 in 1935 (24 years later), 3,000,000 in 1961 (26 years), 4,000,000 in 1976 (15 years), 5,000,000 in 1991 (14 years), 6,000,000 in 1999 (8 years), 7,000,000 in 2006 (7 years), 8,000,000 in 2011 (5 years), and 9,000,000 in 2015 (4 years). The pace of issuance of patents was accelerating before the AIA in 2011, as can be seen, and if the act has some of its intended effects, the pace should increase.
Patented inventions have been the basis for many new industries and large companies in history. Bell’s telephone (174,465), Edison’s light bulb (223,898), Marconi’s radio (586,193), the Wright brothers’ airplane (821,393), and Bardeen, Shockley, and Brattain’s transistor (2,524,035 and 2,569,347) are examples of inventions from the past that created entire industries. Goodyear’s vulcanization method (3,633), Eastman’s photographic process (226,503), and Carlson’s photolithography method (2,297,691) are examples from the past of inventions that launched large companies.
The 1980 Supreme Court case Diamond v. Chakrabarty is indicative of the increasing effect that patent laws have on modern society. In that landmark case, successfully argued by attorneys of the firm, the Court held that genetically altered living micro-organisms are patentable. The decision spurred the development of new and useful genetically altered materials and jumpstarted the biotechnology industry. The modern company Amgen began corporate success in biotechnology, benefiting from Chakrabarty and its patents on EPO (such as 4,703,008). The growing importance of patents in modern society is further suggested by the accelerating pace of patent issuances.
Finally, a patent gives the patent holder not only the right to prohibit its competition from manufacturing the infringing product, but also a right to damages, as illustrated below by damage awards in recent cases.