A patent model reproduction of Lincoln’s device for buoying vessels over shoals
Courtesy of the National Park Service
America’s founders knew that progress would come not merely at the hands of “great” inventors pioneering extraordinary breakthroughs, but by the widespread invention and improvement of ordinary and “small” contrivances and advancements. In 1790, they created and refined a decentralized, market-based patent system “based on the conviction that individual effort was stimulated by higher expected returns.” The promise of financial reward was the “fuel of interest” that stokes the “fire of genius,” in the words of America’s only president to hold a patent, Abraham Lincoln.
The very first article of the U.S. Constitution gave Congress the explicit mandate “to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Most Americans don’t realize just how unique and revolutionary the modern, market-based U.S. patent system is in world history. At the time of its creation and development through the nineteenth century, it was the first of its kind, the most generous to inventors, and the most conducive to progress. The original builders of America recognized a utilitarian purpose for patent laws in which “[t]he public good fully coincides . . . with the claims of individuals.” Congress and the early courts provided for expansive and generous protection of inventors’ intellectual property rights, as George Mason University law professor Adam Mosoff has extensively documented.
The U.S. patent system first began as an intimate process during which three high-level White House officials—the attorney general, the secretary of war, and the secretary of state—reviewed each patent application. As the population exploded, so did the nation’s inventive spirit. In 1836, major patent reforms were adopted, including the creation of the U.S. Patent Office and its bureau of trained, professional examiners. Our farsighted forefathers created tradable assets for inventors that they could sell, license, or assign to others for monetary gain. In return, inventors agreed to public disclosure of their ideas and expiration of the patent after a limited time period. The tradeoffs allowed broad dissemination of technical knowledge and catalyzed even more innovation and invention.
Thomas Jefferson, the first patent examiner of the United States and one of the godfathers of American invention, is often credited with (or blamed for) framing the Constitution’s intellectual property protection exclusively as a “special monopoly privilege” of the government. But many modern foes of intellectual property rights in academia have twisted Jefferson’s writings and whitewashed America’s grounding in natural rights philosophy. Primary historical sources, congressional documents, and colonial-era courts—as well as early patent statutes and nineteenth-century patent case law—reveal that patents have been construed as basic civil rights in property since America’s first days.
Statesman and constitutional lawyer Daniel Webster said it best during a floor speech before the U.S. House of Representatives in 1824:
[T]he right of the inventor is a high property; it is the fruit of his mind—it belongs to him more than any other property—he does not inherit it—he takes it by no man’s gift—it peculiarly belongs to him, and he ought to be protected in the enjoyment of it.
Webster vigorously defended patent cases, including the valiant battles on behalf of Charles Goodyear. You’ll remember that Goodyear’s vulcanized rubber process made possible, among so many other beneficial things, the prosthetics breakthroughs of A.A. Marks. Goodyear was forced to prosecute thirty-two infringement cases involving patent pirates all the way to the U.S. Supreme Court. After years of litigation and costs that left both near bankruptcy, Webster and Goodyear prevailed. Webster declared in his winning Supreme Court argument for Goodyear that the Constitution does not create out of whole cloth, but secures the inventor’s natural, pre-existing, inherent right to his or her intellectual property. This right, Webster posited, was “more clear than that which a man can assert in almost any other kind of property.”
Legal controversies about intellectual property abound between the utilitarian and natural rights camps. But here’s the bottom line: Rather than denigrate the profit motive, the patent and copyright clause of the Constitution celebrates and encourages “individual effort by personal gain [as] the best way to advance public welfare through the talents of authors and inventors.” Free-market capitalism, so maligned in today’s culture and mainstream politics, was at the heart of our founding intellectual property rights infrastructure.
The Patent Office in D.C. was open to the public and provided inspiration to hundreds of thousands of visitors. The stately building displayed thousands of patent models in glass cases arranged by subject matter. The miniature models, no larger than twelve inches by twelve inches by twelve inches, were required as part of the application process from 1790 to 1880. This allowed tinkerers who didn’t have the ability, education, or means to describe their ideas on paper to demonstrate them in a concrete, mechanical way. Scientific American ran regular feature articles on patentees and myriad advertisements promoting patent advice. Popular Mechanics ran its own “Patent Bureau” offering consultation and legal services to aspiring inventors.
Nineteenth-century inventors and entrepreneurs were the cultural heroes and pop icons of their day. President Lincoln not only defended the intellectual property rights of clients, but personally encouraged technological innovation. The mechanically inclined pioneer was an early adopter of the telegraph. He tested the Henry and Spencer repeating rifles on the White House lawn. He assisted weapons inventors George H. Ferriss, James Holenshade, Isaac Diller, and James Woodruff—fostering the development of new machine guns, cannons, explosives, gunpowder, and fireproofing methods. Lincoln also delivered lectures on the history of discoveries, inventions, and patent laws. He took his young son to visit the Patent Office in Washington. And he practiced what he preached.
A patent model reproduction of Lincoln’s device for buoying vessels over shoals
Courtesy of the National Park Service
As a young flatboat operator in Illinois, Lincoln was involved in an accident that grounded the vessel. The impact sent hogs and barrels, which he had been hired to transport, overboard. Years later, while traveling home along the Detroit River from Washington, where he was serving in Congress, he witnessed a steamboat run aground. It triggered his quest to invent a flotation device to buoy a grounded ship over sandbars or other obstructions without discharging all of its cargo. He constructed a miniature model (now housed at the Smithsonian Institute), wrote up a description, applied for a patent, and paid the same thirty-dollar fee every other aspiring patentee was required to file. On May 22, 1849, the U.S. Patent Office approved his invention and issued Patent Number 6,469 for his “device for buoying vessels over shoals.” Though he did not pursue commercialization of his product (Lincoln was, after all, preoccupied with more pressing matters), scholar Jason Emerson notes that the president’s ideas “may have advanced the creation of modern ship salvaging and submarine construction.”
The great American novelist Mark Twain—patent holder on three inventions (a self-adhering scrapbook, a memory game, and an elastic strap for clothing), technology investor, and friend of inventive genius Nikola Tesla—venerated our patent system in his novel, A Connecticut Yankee in King Arthur’s Court. Transported from the nineteenth century back to the Middle Ages, Twain’s time-traveling protagonist, Hank Morgan, set out to modernize sixth-century society. “The very first official thing I did, in my administration—and it was on the very first day of it too—was to start a patent office,” Hank says, “for I knew that a country without a patent office and good patent laws was just a crab and couldn’t travel anyway but sideways and backwards.”
The fuel of interest—that is, the opportunity to profit from one’s ideas—induced a large number of diverse people to turn their attention to inventing, innovating, and improving. As one official at a celebration of the patent office centennial quipped in 1891, the patent office stimulated Americans to “turn their thinking into things.” From 1863 to 1913, an estimated 800–1,200 patents were issued to black inventors. Between 1790 and 1895, some 3,300 women secured more than 4,100 patents. Frontier and rural women patented important devices and improvements in dairy farming and food preservation. New England and East Coast women pioneered manufacturing innovations in everything from elevator safety to sewing machines and paper bags. Between 1870 and 1930, economist B. Zorina Khan’s research shows, 21 percent of all patentees were foreign-born inventors; foreign-born residents accounted for between 10 and 14 percent of the total population.
Throughout this book, the American tinkerpreneurs who successfully commercialized both “ordinary” and “extraordinary” inventions and innovations extracted financial gains from their patents. They defended, acquired, and traded on their patents unapologetically. Glass industrialists Michael Owens and Edward Libbey licensed their bottle-making equipment. Nikola Tesla sold his key alternating current patents to George Westinghouse, who had the capital and know-how to bring Tesla’s work to market. Disposable bottle cap pioneer William Painter, who had been the victim of intellectual property theft early in his career, armed himself with aggressive patent lawyers. So did Westinghouse, disposable razor inventor King Gillette, and Maglite inventor Anthony Maglica. Fending off intellectual property thieves was vital to a budding tinkerpreneur’s survival.
For more than two centuries, these founding principles and institutions have yielded the most innovative nation in the world. As the many examples in this book have shown, American tinkerpreneurs are also among the world’s most generous philanthropists. Profit and the public good go hand in hand. But the twenty-first century has ushered in dangerous threats to the time-tested patent system and American innovation. Under the guise of “reform,” transnationalists and antitraditionalists have undermined inventors’ rights and U.S. sovereignty.
As part of his radical bid to “fundamentally transform” America, President Obama signed the Orwellian-titled America Invents Act (AIA) in 2011. If truth-in-advertising laws applied to politicians who front massively complex bills that do the opposite of what they proclaim to do, these hucksters would be jailed for their patently fraudulent “reform” legislation. Cosponsored by Sen. Pat Leahy (D-VT) and Rep. Lamar Smith (R-TX), the law was marketed as a job-creation vehicle that would relieve a backlog of an estimated seven hundred thousand patent applications and crack down on patent “trolls” supposedly abusing the system through frivolous litigation against alleged infringers. In truth, the AIA is a special-interest boondoggle that enriches corporate lawyers, Big Business, and federal bureaucrats at the expense of independent inventors and fledgling innovators the American patent system was created to protect and encourage.
The AIA’s primary agenda? “Harmonizing” our patent laws with the rest of the world to reward paper-pushers who are “first to file” at the Patent Office, instead of those who are “first to invent.” These and other measures enacted by President Barack Obama threaten to drive garage tinkerers and small inventors—the designers, engineers, and builders of American prosperity—out of the marketplace. Longtime venture capitalist Gary Lauder notes that the first-to-file system has suppressed solo and small business innovation in Europe and Japan. “The US gets ten times the angel and venture capital of Western Europe—which recently declared an ‘innovation emergency,’ ” Lauder observes, “so why are we harmonizing with them? They should be harmonizing with us.” Amen and hallelujah! If only American politicians spoke up for American inventors with such force and clarity.
Large multinational entities benefit most from the European patent system of “first to file.” Solo do-it-yourself-ers and small start-up shops—like the ones highlighted throughout this book—don’t have armies of high-priced attorneys on retainer to race to the patent office for every last brainchild. Steve Perlman, prolific inventor and holder of more than one hundred patents on inventions ranging from Quicktime to WebTV to MOVA Contour 3-D special effects imaging, tried to teach Congress how the time-tested, uniquely American “first to invent” system had allowed him to create successful businesses that supported thousands of American jobs. “A large part of invention is trying out a vast number of ideas,” he explained in an open letter to leading senators. To develop MOVA Contour, a digital facial motion capture system used most famously to reverse-age Brad Pitt in The Curious Case of Benjamin Button, Perlman experimented with one hundred unique inventions over five years of research and development. He ended up patenting only a half-dozen ideas after the necessary trial-and-error tinkering.
The original inventor-friendly process, enshrined by founding constitutional principles, allowed inventors to wait and vet quality patent applications until they’d fully developed and tested quality inventions. Cash-strapped start-ups could defer patent filing expenses until they decided they were good and ready. Under the old American way, as long as Perlman kept proper documentation, he retained priority over his ideas from the date he conceived them:
It typically costs us $20,000–$30,000 to obtain a commercial-grade patent. As you can imagine, in a First-to-File country, as a startup, we could only file patents on a small fraction of the inventions at the time of conception. . . . [T]he inventions that looked the most promising at the outset turned out to be dead ends. Had we filed patents on them, it would have been wasted money, while the inventions that mattered would not have been patented at all, potentially making it impossible to fund the company. It is no surprise that the [U.S.] is by far the leading nation in the world when it comes to startups and, since its earliest days (when “First-to-Invent” was established), America has been known as a mecca for invention.
No more, thanks to Team Obama’s wrecking crew. The European-style “first to file” now in place in America is a “forced to file” regime that incentivizes a hasty stampede to the federal patent office. In the name of global harmony, we now reward paper-pushing attorneys—whether or not they’re representing true first inventors. Instead of “streamlining” the application process and reducing paperwork backlogs, the AIA induces corporations to inundate patent examiners with incomplete, placeholder applications that will inevitably need to be amended, refined, and reconsidered. This is not patent “reform.” It’s a Big Business Patent Lawyers’ Full Employment Act.
Like Obamacare, the sheer size and complexity of the AIA nullify the dubious benefits the White House and its statist lobbying pals claim it will bring. University of Virginia law professor John Duffy points out that the law is 140 pages long, “more than twice the length of the entire federal patent statute” since its last recodification in 1952. Stuffed with earmarks and bribes for the banking industry, Michigan Democrats who lobbied for a new satellite patent office in Detroit, and other well-connected cronies, the AIA’s thirty-seven sections are intentionally complex. Its sloppy drafting will result in “cases interpreting the law going to the courts for twenty years before lawyers really know how to advise clients,” patent lawyer David Boundy predicts. Also buried in the law: a new pay-for-play scheme, dubbed “Fast Track for Fat Cats” by indie inventors, which allows large companies to expedite their applications by forking over a $4,800 fee. Southern California small business inventor Bryan Pate, who founded an elliptical training bike company in 2005, states the obvious: “Having to spend more money to speed up the process favors big companies, not small ones.”
Crony favoritism is a feature, not a bug, of President Obama’s radical initiatives—from Obamacare to the Dodd-Frank financial “reform” monstrosity to the federal stimulus package (aka porkulus) to Patentcare. It’s no coincidence that the AIA’s chief Senate cheerleader, Democratic Senator Pat Leahy, championed President Obama’s first PTO nominee, David Kappos, a former Big Biz corporate lawyer for IBM. As head of the PTO, Kappos lobbied aggressively for passage of the AIA. Kappos then resigned from the White House to take a cushy lobbying job with New York firm Cravath, Swaine, and Moore, which Kappos had worked closely with when his former employer IBM retained them. Kappos is now paid handsomely to advise deep-pocketed clients on how to navigate the intellectual property rules and complex patent regulations that he implemented at taxpayer expense. Nice revolving-door work if you can get it.
To add insult to small-size inventors’ injury, the bipartisan, corporate special interests behind the AIA are the same ones selling American workers and patriotic job creators like Tony Maglica down the river through rampant outsourcing and systemic importing of cheap, temporary foreign labor. But that’s the subject of another book.
Classics scholar and historian Arnold Toynbee is best remembered for arguing that “civilizations die from suicide, not by murder.” Global competitors certainly pose serious external threats to America’s leading role as an innovation leader. But we face grave existential threats within our own borders: homegrown ignorance, apathy, and downright hostility toward the principles and institutions that made America great. Real “reform” begins with the repeal of the innovation-stifling “America Invents Act,” a return to first constitutional principles that maintain a level playing field among tinkerpreneurs of all sizes, and a rhetorical and policy ceasefire by Beltway class warriors who’ve recklessly demonized our nation’s most productive and creative members for their own political gain.
Liberty, not government, is the world’s most powerful wellspring of innovation. The stories I’ve told here are but a small confirmation that free human beings, acting in their own self-interest, also best serve the public good. This revolutionary idea is a hallmark of American exceptionalism. French historian Alexis de Tocqueville reported that the doctrine of enlightened “self-interest rightly understood” was a part of America’s DNA from its founding. It was a tenet held and practiced fiercely not just by elites, but by everyone. “You may trace it at the bottom of all their actions, you will remark it in all they say. It is as often asserted by the poor man as the rich,” de Tocqueville observed. Author Charles Murray adds that the Founders promoted industriousness—“something more than working hard.” Murray describes it as “the bone-deep American assumption that life is to be spent getting ahead through hard work and thereby making a better life for oneself and one’s children.” He points to German social historian Francis Grund, a contemporary of de Tocqueville’s, who observed firsthand America’s insatiable willingness to work. “Active occupation is not only the principal source of happiness, and the foundation of their natural greatness, but they are absolutely wretched without it. . . . Business is the very soul of an American,” he wrote in 1837.
Entrepreneurial industriousness was in the soul of businessman Charles Hires, who turned dirt into dollars and twigs into root beer. It was in the souls of the Scott brothers, who went from selling butcher paper on the streets to building a corporate powerhouse selling toilet paper and paper towels. It drove William Painter, who achieved great wealth, but kept working until he could work no more. It bound business partners Willis Carrier and J. Irvine Lyle, Westinghouse and Tesla, and Libbey and Owens, whose engineering feats and business endeavors still benefit the world today. It was in the souls of the Roebling family, who gave limbs and lives to fulfill their American Dream. It was in the souls of the mom-and-pop shop owners and indomitable amputees who pioneered artificial limbs in the nineteenth century. And it’s in the souls of their twenty-first-century successors from New England to West Virginia, Iowa, Colorado, and California.
Our founders understood at the dawn of the Age of Progress what the Girl Scouts in Ames, Iowa, who secured a patent for their Lego limb, now appreciate: The power to make money is the power to do good.
When one tinkerpreneur’s dream is fulfilled, unimaginable new opportunities arise. One new industry begets myriad others. Through voluntary associations between and among countless producers and consumers, private advancement and social progress are made.
These are the results of one of humankind’s most marvelous innovations of all. It guides millions of individual makers and risk-takers to pursue their own profits and happiness while enhancing the public good—including all of the tinkerpreneurs I’ve profiled. It’s the same ineluctable force that brings complete strangers together to produce cars, planes, trains, electricity, pharmaceuticals, smartphones, dumbwaiters, diapers, pencils, prosthetics, and yes, this book.
No one can see or touch it, but modern American life and all of its wondrous amenities wouldn’t exist without this freedom-powered device:
The invisible hand.