Invention, Authorship, “Intellectual Property,” and the Origin of Patents: Notes toward a Conceptual History

Abstract

Invention, Authorship, “Intellectual Property,” and the Origin of Patents: Notes toward a Conceptual History PAMELA O. LONG Intellectual property issues involving both old and new technolo­ gies are pressing and controversial in contemporary scientific and technical culture.1 Yet the historical development of the concept of intellectual property itself needs far more study. As it pertains to technology, “intellectual property” involves particular attitudes to­ ward craft knowledge and practice, invention, and authorship, and is properly studied within the context of these intrinsically related issues. A complex background of intellectual history precedes the origin of the limited monopoly that is called a patent. “Intellectual property,” a legal concept, refers to various kinds of intangible property. With reference to technology, it involves the belief that knowledge of craft processes and techniques and the develop­ ment of technological innovations are forms of property with com­ mercial value that are separate from products or devices.2 Intellectual property laws grant limited monopolies under certain conditions for particular kinds of authorship. Most modern legal systems distinguish between patents and copyrights. Yet to project this distinction too Dr. Long is a tutor at St. John’s College, Annapolis, Maryland. She is working on a book concerning the issues of openness, secrecy, authorship, and intellectual property in pre-17th-century writings on the practical and military arts. Aspects of the research were presented at the 1990 SHOT meeting in Cleveland. She gratefully acknowledges the support of National Science Foundation grant SES-8607112. ‘For an introduction to recent issues and controversies with extensive further bibliography, see Dorothy Nelkin, Science as Intellectual Property: Who Controls Research? (New York, 1984); Science, Technology, and Human Values, vol. 10 (Spring 1985), an issue devoted to openness and secrecy in science and technology; and Vivian Weil and John W. Snapper, eds., Owning Scientific and Technical Information: Value and Ethical Issues (New Brunswick, N.J., 1989). 2A useful discussion of conceptual issues is Rochelle Cooper Dreyfuss, “General Overview of the Intellectual Property System,” in Weil and Snapper, eds., pp. 17-40. Because intellectual property is a form of property, the idea of private property itself is germane. For an introduction, see Richard Schlatter, Private Property: The History ofan Idea (1951; reprint, New York, 1973).© 1991 by the Society for the History of Technology. All rights reserved. 0040-165X/91/3204-0008$01.00 846 Invention, “Intellectual Property,” and the Origin of Patents 847 sharply into the historical past is anachronistic. Authorship can refer to written authorship or the authorship of making and inventing material things. Historically, patents appeared before copyrights, but the concept of “intellectual property” (a kind of intangible property) emerged prior to either form of limited monopoly. Novelty (that which is new) preceded originality (that which originates in a partic­ ular author) as thejustification for patent awards.3 Yet the connection between individual authorship and intellectual property had been made by the 15th century at the latest, first with regard to material inventions and later (in the 16th century) with regard to writings.4 ’The distinction between novelty and originality, crucial for modern intellectual property law, is also useful for historical investigations. For instance, a U.S. patent must meet tests for both originality and novelty. The invention must originate with the inventor (it must be original). Yet it must also be novel, i.e., it cannot have been invented independently by someone else. On the other hand, a U.S. copyright must be original but does not have to be novel. In the unlikely event that I wrote a play called Hamlet exactly like the one written by Shakespeare without any knowledge or influence of the prior work, I would own the copyright in that work as my own original (but not novel) expression. This is why the U.S. Patent Office (presumably) does not have a file on people who claim to have invented the wheel, whereas the U.S. Copyright Office does have a file on people who insist that they have written an “original” song called “Happy Birthday to You.” For further discussion of the distinction, see Arthur Kuflik, “Moral Foundations of Intellectual Property Rights,” in Weil and Snapper, eds., pp. 219—40, esp. 236—39. 4Thus author...