IN COME THE MODELS
When Jefferson dismantled the patent system in 1793 and transferred the burden of examining patent applications onto the federal courts, what was the impact?
For every 800 patents issued in the early nineteenth century, 100 found their way to courts. Compared to today, the rate is at least double. It was a burden the courts were ill equipped to handle. With all the other new constitutional issues facing a fledgling nation, patents were the last thing the courts needed to clog their dockets.
So did anything good come out of the first patent act?
Absolutely.
Even with the strain thrust onto the patent system, there was one bright spot—and that was its patent models. The model requirement was unique to U.S. patent law, one that has never been adopted by any other country.
But it was a gem, and it’s an absolute shame that even the U.S. abandoned the model requirement in 1880. In its day, the model requirement was not only a source of great pride for Americans, but served to limit the scope of patents and make sure that patents were awarded on quality ideas. It’s a provision we desperately need to resurrect.
A patent model is a miniature prototype of the actual product, and its submission was required for nearly a century after enactment of the first patent act. In the language of the patent office: “The model, not more than 12 inches square, should be neatly made, the name of the inventor should be printed or engraved up, or affixed to it, in a durable manner.”
As the Industrial Revolution waned, the requirement was eventually retracted. These relics of the past have long since been scattered to the winds, with many finding their way into shelves of today’s patent attorneys—paper weights and office decorations.
But a few, like the Westinghouse air brake, are still on display in today’s patent office. The Westinghouse model sits on a small wooden platform about a foot long and six inches wide. The components consist of a series of steel tubes for transporting pressurized air to a mechanical brake. The parts are sliced in half, giving it the look of a cross-sectional drawing from a modern patent application.
Is it really fair to force an inventor to build a sophisticated model in addition to drafting a patent application? Wouldn’t this by itself stifle innovation? In the nineteenth century, the cost to make the model could often be more than that of the application. And for those inventors, when most were common people—farmers, laborers, schoolteachers, carpenters—requiring a patent applicant to submit a model might easily have been cost prohibitive.
Somehow, the inventors still found a way. Perhaps this was because they were confident that this investment wasn’t throwing good money after bad.
How did they make the models? After all, very few had the talent or the tools to whip together a miniaturized version of their inventions.
In America, if there’s a way to make money, somebody will step to the plate. For patent models, it was no exception. Dozens of boutique model-making shops quickly sprang up in Washington, D.C. Take an armful of drawings, hover over the machinist for a few hours, and out pops an operating prototype—physical proof of invention, not just some whim of an idea.
The insistence of models by the first Congress likely came about because of a precedent set a hundred years before. When America was made up of thirteen loosely associated colonies, some did allow for patent grants. In those cases, an inventor could petition the colonial legislature or assembly to grant him the exclusive right to use or sell his invention. But legislatures—ever leery of abuses of power—were reluctant to grant any exclusionary rights based on a mere idea. And so they rarely awarded patents.
Smart inventors learned that it was easier to obtain patent rights if they constructed a working model to demonstrate that their idea really worked. Patent models also served a deeper purpose. Legislators knew that patents were granted only if the public would benefit from the idea after the patent expired and everyone was free to use the technology. Models provided an easy way for legislators to see what would eventually be turned over to the public.
A good idea is worth repeating.
And so the first Congress copied this idea. The Patent Act of 1790 required the submission of a miniature model to the Secretary of State.
Jefferson believed that patents were part of a social contract that necessitated government protection, but he also was concerned that government grants of patent rights were subject to abuse. Patent models were a way to curb the grant of excessive rights by ensuring that applicants adequately described their invention so that others could benefit from their technological contribution.
Even when, in 1793, Congress followed Jefferson’s prompting and eliminated formal examination of patent applications, they still kept the model requirement. Jefferson felt that models were that important. Thus his insistence that Whitney submit his model before he would register his patent.
When William Thornton was appointed in 1802 to handle patent affairs, he published a pamphlet stating that “if the machine be complex, a model will be necessary” and that “many machines are so complicated that no one but a skillful artist can comprehend their construction or mode of operation without inspection of a model.” Under Thornton, models were filed in about eighty percent of the cases. Though not explicitly mentioned by Thornton, another factor in requiring models was that a large portion of the population was illiterate and unfamiliar with technological and scientific publications. Models were a hands-on library for the illiterate. After all, the common mechanic and farmer did the bulk of the inventing during the nineteenth century.
Although Jefferson had rid himself of the patent business in 1793, that didn’t mean the logistical issues of handling patent applications went away. Yes, Jefferson and the Patent Board were no longer needed to examine applications for novelty, but somebody still had to register the applications. Patent registration was now purely a clerical function, making sure that all the paperwork and models were properly submitted.
The problem was that there were simply no available bodies to do it. Almost by default, the job fell to the clerks in the State Department who tried to fit in patent registrations with their other foreign duties. In June 1800 the federal government moved from Philadelphia to Washington, D.C. In what was still mostly a mosquito-infested swamp, the State Department took up quarters with the Treasury Department. At the time, the State Department had a total of only eight employees.
With more patent applications and models rolling in, it became clear that the U.S. needed a patent office and somebody to run it. The top choice was James Madison’s next-door neighbor, William Thornton. The two had more in common than a fence. Together they raised and raced horses. Since James Madison was Secretary of State, the appointment was an easy one, especially because Thornton had just been relieved of his duties as Commissioner of the Federal City now that Washington had been chartered as the new government headquarters. So on June 1, 1802, Thornton was hired by the State Department to take over its patent responsibilities with a salary of $1,400 a year. Not so coincidentally, that was the same amount generated each year by patent filing fees. Thornton was given one clerk and told to find space as best he could in the State Department building.
And so the patent models came pouring in. By 1807 James Madison, who was still Secretary of State, wrote to Congress indicating that the number of patents was doubling every four years and that the patent office needed more help. By now, Thornton was also acting as justice of the peace for Washington, and he needed another clerk. What the patent office really needed was a building of its own. One visitor to Thornton’s room in the War and Post Office building reported that his registration books, along with the accompanying models, were haphazardly scattered about on shelves as well as the floor and were covered with dust. He further observed that the room was far too small for its purpose, and badly in need of a book case.
For his part, Thornton kept pestering Madison about the need for new space, and of his ill treatment as head of patents. He complained about how he was acting as a museum curator for the models, but with no place to put them. And, because of the large numbers of patents being registered, he had no time to write out the specification for each one. To this latter point, Thornton did a great disservice to those who were granted patents. Oliver Evans was the classic example. He’d asserted his patent for a process to mill flour against an infringer in Pennsylvania, but the court said his patent was invalid because the patent office failed to write out the description. He was left without any remedy.
Some things were out of Thornton’s control, such as mail delays and the time it took to receive signature from the Attorney General, the President, and the Secretary of State. This was one of the primary reasons why it took Eli Whitney a year to receive his patent.
Thornton continued to pester Madison about his overwhelming workload and the need for a new patent office. He also confided in Madison of his financial predicament due to some poor investments, requiring him to hold up on his farm while he continued registering patents, at a rate of 160 in 1808. When that didn’t work, Thornton wrote to President Jefferson informing him that in 1809 the number of patents had risen to 219 and that he was now hiring an assistant at his own expense. Congress finally got the message and on April 28, 1810, authorized the purchase of a new building to be shared by the Patent Office and the Post Office.
Their selection of buildings was an interesting one. President Madison chose Blodgett’s Hotel, a building with a sordid past. It was originally constructed in 1793 by Samuel Blodgett, who was a land speculator hoping to cash in if the federal government were moved to Washington. Blodgett took the fortune he’d made trading in East India and started a lottery as a way to advertize his real estate business. The winner of this lottery would receive a hotel worth $50,000. The problem was that the hotel was never completely finished before Blodgett bankrupted. Thornton became a bail bondsman to Blodgett and when Blodgett fled the city, Thornton was left with more than $10,000 of his debts.
The government, needing another federal building, eventually paid the winner of the lottery $10,000 for the hotel. The initial report of the building’s condition was dismal. Three families were squatting in the hotel, along with an assortment of hogs. Although the walls were standing, all that existed of the floors were the joists. Nearly every window was broken. Still, they had a building. Work began right away to finish the floors, with the patent office having a receiving room for new applications, an office for the superintendant, and a large room in the center of the building for exhibiting the patent models. Thus, Blodgett’s Hotel would become America’s first patent museum.
By September, 1810, the building was sufficiently complete for the move. Although cabinets for the models were still being constructed, Thornton was set to move in. To memorialize the event, he wrote a letter to the Secretary of State, which ended up being more of a tirade than a thank you note. Thornton took issue with how patents had taken a back seat. Originally they had to be approved by the Attorney General, Secretary of State, and Secretary of War, and now there were no requirements. Although Thornton didn’t have power to refuse registration of a patent, he felt it was his patriotic duty to inform the applicant if the idea wasn’t novel and deserving of a patent. Thornton’s battle with Robert Fulton when refusing to register the patent on Fulton’s steam ship was on direct point with this doctrine. Thornton freely spoke his opinion that applications should be examined for novelty—a battle he would never win.
While Thornton mused over the value of the patent models to America, he probably had little idea that these models would be the only thing to save the last government building from British troops four years later. Tensions between the British and the U.S. escalated into war when Britain began restraining U.S. trade with France, with whom Britain was already at war, along with capturing American seaman and forcing them to labor on British ships. The War of 1812 lasted three years, but was felt most keenly in the nation’s capitol during the British raids on the Chesapeake Bay beginning in August, 1814. In what would become known as the “Burning of Washington,” America would lose the White House, the Capitol, the Navy Yard, and most other federal buildings. When these raids began, most government officials realized the city could not be defended and fled. To his credit, Thornton decided to stay—and to save the patent office documents. Thornton still had his farm in present-day downtown Bethesda, and he arranged to move the patent office papers there. With his clerk, George Lyon, and model maker, Thomas Nicholson, Thornton purchased wood and iron strapping and hired two others to construct boxes to hold all the Patent Office papers and books. Using hired wagons, they hauled the laden boxes to Thornton’s farm. The task took two days, Monday and Tuesday of August 22 and 23. Thornton chose to leave the models in the patent office. There were hundreds of them, and their weight and bulk prohibited their move.
With the documents secured, Thornton joined James Monroe, the Secretary of State, to scout out the enemy. The next day, on August 24, British troops moved through Bladensburg, Maryland with little resistance. Thornton took his family to Georgetown to watch the fires blazing as most of Washington’s buildings burned to the ground. The next morning, Thornton learned that Blodgett’s Hotel was next on the list. He rushed into the city in an apparent attempt to save one of his own patent models, a musical instrument. When he reached Washington he watched as British troops set fire to the War Office. A British officer, Major Walters, along with 150 soldiers, were awaiting the command from Colonel Timothy Jones to burn the patent office. Thornton plead with the major to spare his musical instrument. According to Thornton’s account, the plea went further. Thornton explained that this was the patent office and contained hundreds of scientific models that could benefit the entire world, not just America. He told Major Walters that if he burned the building, he would go down in history as a nefarious criminal, akin to the Turks who burned Alexandria and its world famous library.
Walters was bothered enough by the allegation that together they went to Colonel Jones, who was busy burning Joseph Gales’ printing shop. After Thornton again plead his case, Jones gave the order to spare the patent office. A few hours later, a hurricane ripped through the city, extinguishing all the remaining fires and prompting the British to flee the city. The storm was so violent that it also blew off a part of the roof of Blodgett’s Hotel. A month later, on the night of September 13, 1814, Fort McHenry was bombarded by the British, with Old Glory illuminated by the explosions. Although Americans now remember that Francis Scott Key wrote the words to The Star Spangled Banner during the War of 1812, British seamen went home repeating the story of the monstrous storm that forced them from America’s capitol.
With the British gone from Washington City, Congress had a serious problem. They had no place to meet, and the next session was scheduled in two weeks. Because Blodgett’s Hotel was the only building still standing, Congress took it over, and they stayed for another year until the Old Brick Capitol building was constructed on the present site of the Supreme Court Building.
Back in Blodgett’s Hotel, the number of patent models continued to grow. Over time, new submission guidelines refined the submission requirements. Rules published in 1828 stated that
in all cases where it is believed that the nature of the machine will be more clearly shown by it than by drawings alone…. These models should be neatly made, and as small as a distinct representation will admitted; they ought to have a permanent label affixed to them…. They will be carefully kept for the advantage of the patentee and the information of the public.
The submission of models not only served to educate the public, but was critical when the patent was enforced in court. Models were useful to explain the invention to judges and juries who helped decide both whether the patent was valid and whether the accused device infringed its claims. Beyond that, the patent office wanted proof that a mousetrap was capable of catching a mouse. They wanted to know that gears actually turned or that earth was actually plowed.
By 1835 the number of accumulating models had become a serious issue. Henry Ellsworth, the new Patent Commissioner, commented that the weight of the models was threatening the integrity of the building. It was the beginning of many changes that would happen the next year.
Although the displayed models were touted by the country, they soon proved to be a source of fraud as unscrupulous individuals would copy them, then file their own applications on the same ideas. Because of a loophole in the 1793 Patent Act, applications couldn’t be rejected even if the same idea had already been patented. Applications weren’t substantively examined for novelty. It was becoming clear that America’s patent system was rapidly deteriorating. It was due for an overhaul.
The year 1836 was a year where Congress allocated money for a new patent office, and a new patent statute was passed. Under the new law, patents once again began to be examined for novelty, and the new Commissioner of Patents saw the models as being “absolutely necessary” to the examiners as a way to determine whether an idea had been previously conceived. In other words, when determining whether an idea was new, the examiner could look to the collection of previously submitted models to determine whether the idea had already been invented. With a new set of patent laws and a striking new building under construction, the future of America’s patent system was bright. But on December 15, 1836 a raging fire tragically destroyed the entire library of 7,000 models, along with all the patent files, including many notable documents, such as Robert Fulton’s original steam engine drawings.
The only saving grace was that the new patent office, which today houses the National Portrait Gallery, was already under construction. Only a few years later, the patent office was back in business, collecting more patent models. Over the decades, as patent filing grew exponentially, the new patent office once again became cluttered with thousands of models. Display rooms were set up where millions were dazzled by their genius, ingenuity, and craftsmanship. This display, the Old Curiosity Shop, was a source of pride, not only for the inventors, but for all of America. It was so large it took up the entire third floor of the patent office, with its four grand halls packed with glass cases housing the models. Eventually, guide books were printed and tour guides were offered to steer the patrons through the maze of corsets, railroad machinery, hoop skirts, and paper-making machines, mingled with relics such as Benjamin Franklin’s printing press and George Washington’s camp equipment from the Revolutionary War.