America prides itself on ingenuity. In 1790, we started making it official. 230 year ago today, the first patent was issued in the United States. Over time, the power of patent has moved from a group of three people and through multiple departments before finally settling in the United States Patent and Trademark Office in 1975. Despite the pervasive nature of invention in our society, some citizens don’t even know what a patent is. Here’s a look at that answer, what the first patent was, and how patents might evolve in the future.
1. What is a Patent Anyway?
The first U.S. patent (The First U.S. Patent. (www.uspto.gov))
In simplest terms, a patent is an idea that you own, also called intellectual property. When someone secures a patent, they are the legal owner of the idea described and can prevent others from profiting from or manufacturing the object of the patent for a period of time. In exchange, the patent holder is required to submit public documentation detailing how the idea/product/etc. works.
Patents in the United States are covered in the Constitution in Article I, Section 8, Clause 8. The Clause reads that “[The United States Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” All subsequent U.S. patent and copyright laws are built on this statement, which was first discussed by Charles Pinckney and James Madison in 1787. The Clause became law with the ratification of the Constitution. Title 35 of the United States Code sets up how patent law works.
2. Early Patents Got Approved by Three People
The Patent Act of 1790 added more detail to how the patent process worked. Three people were given the power to refuse or grant patents: the Attorney General, the Secretary of War, and the Secretary of State. An applicant could get a patent if two of the three voted yes. Determinations at the time were based on the novelty of the idea/item/etc. and if the subject of the application was, in the words of the Act, “sufficiently useful and important”.
3. The First Patent
A 1971 photo of a patent office. (O’Halloran, T. J., photographer. (1971) PATENT OFFICE. , 1971. [Photograph] Retrieved from the Library of Congress)The very first U.S. patent was awarded to Samuel Hopkins on July 31, 1790. The patent covered the making of potash, which was used in the production of fertilizer. President George Washington himself signed it. The original document can be found today in the Chicago Historical Society, but you can also view it at the United States Patent and Trademark Office website. As of 2018, more than 10,000,000 patents have been issued.
4. The Fires
While much of the business of the Patent Office has run smoothly on an ideological level, practical challenges have sometimes appeared. The sheer volume of submissions means that backlogs are a problem, necessitating the opening of satellite sites to clear all of the potential patents waiting to be reviewed. There have also been some incredibly damaging fires that affected the office.
In 1836, U.S. Patent Office at Blodget’s Hotel in Washington, D.C. burned; the 10,000 patents on site were reduced to ash. Ironically, it had been one of the few buildings in the area not burned by the British during the War of 1812. After the fire, new procedures were put in place, and the Patent Act of 1836 made the Patent Office an individual organization within the Department of State.
A supposedly fireproof new building for the office was completed in 1864, but it wound up burning as well in 1877. A few hundred thousand patent drawings were destroyed by fire or water, but the loss wasn’t considered as serious; due to the procedural changes made after the 1836 blaze, copies of the drawings and documents were now kept in separate locations to ensure their overall survival.
5. The Different Departments
The U.S. Patent and Trademark office building in Alexandria, VA. (Daniel J. Macy / Shutterstock.com)
The Patent Office has the distinction of, well, moving around a lot. Initially, after the 1790 Act, the office was housed under the Department of State. It would shift over to the Department of Interior until 1925, at which time it moved to its current home in the Department of Commerce. In 1975, the office was reorganized as the United States Patent and Trademark Office, with headquarters in Alexandria, Virginia. There are now four satellite office locations: they’re in Dallas, Texas; Denver, Colorado; Detroit, Michigan; and San Jose, California.
6. How to Apply for One Today
Roadmap to Filing a Patent Application (Uploaded to YouTube by USPTOvideo)
Everything that you need to know about applying for a patent is located on this page of the USPTO.gov site. The first step is to search the extensive database at the site to ensure that you aren’t submitting a patent that already exists. Effective August 1, 2020, the filing fee will go up to $532 to file for a patent. The USPTO is unique among government offices as it’s totally paid for by filing fees, rather than tax dollars; for years, 10 percent of the USPTO funds were funneled into the federal budget, but that practice stopped being a regular occurrence during the George W. Bush administration.
One summer night in 1900, a reporter appeared at the door of Thomas Edison’s laboratory pleading for an interview. The night watchman wouldn’t admit him, even though Edison was still at work upstairs. The reporter, Remsen Crawford, said he needed to get Edison’s reaction to the news that seven of his inventions “would revert to posterity and the public good” when their patents expired at midnight.
The watchman conveyed the request on to Edison, who replied,
“Go back. Tell that fellow that I say the expiration of those patents won’t amount to a hill of beans.
“Tell him that Mr. Edison says he has never had exclusive use of his inventions and never expects to in this world.
“Tell him the expiring of a patent has no effect whatever upon the fortunes of an inventor.”
Hearing Edison’s response, Crawford wrote another note: “What do you mean by ‘no exclusive use’? No protection? Must see you.” Eventually the great inventor admitted Crawford and gave him this statement:
“There is no such thing in this country as an inventor’s monopoly. The moment he invents something that is an epoch-maker in the world of science and commerce, there will be pirates to spring up on all sides and contest his rights to his ideas.
“I might invent a new monkey wrench which could go without infringement, but the moment I take certain forces and work out a moving picture for the first time in history… mark you how the pirates rise up and call it their own.”
Thirty years later, Crawford was back at Edison’s laboratory, again asking about patents and their profitability. Having invented the sustainable electric lighting, the phonograph, and the motion picture camera, Crawford asked him, “Why aren’t you the richest man in the world today?”
Edison’s reply:
The only patent that ever made money for Edison.
“Nearly $10,000,000,000, they tell me, are invested in modern industries which developed from ideas embodied in my inventions and my patents.
“A billion or so dollars, I am told, may be the annual total income to artisans and workers in fields thus created.
“But I have made very little profit from my inventions.
“In my lifetime I have taken out 1180 patents, up to date. Counting the expense of experimenting and fighting for my claims in court, these patents have cost me more than they have returned me in royalties. I have made money through the introduction and sale of my products as a manufacturer, not as an inventor.”
Edison was one of the fortunate few inventors who knew that great engineering, on its own, never earned a dime. The success of any technology is due to its business model. And the protection of its copyright.
Unfortunately, Edison said, the U.S. had a “miserable system” for protecting inventions from infringement.
Edison in 1906.
“I have never enjoyed a monopoly upon anything that I have ever invented, with this single modification: the producers of motion pictures did pay me royalties until my patents expired. But even in that case I had to fight a long time in court over my claims.
“I frankly acknowledge that on one of the patents I had filed claims that were a little too ambitious, too broad, and one of the courts threw us out.
“But we modified our claims and the patent was reissued to us, and the picture people recognized our rights and paid us royalties until the patents expired.”
The foundation of America's tattoo-parlor industry: Edison's Stencil Pen from the 1870s.
“I have known of several inventors [whose] ideas would have made them millionaires. But they were kept poor by the pirates who were allowed through our very faulty system of protection to usurp their rights.
“Do you see that little incandescent lamp hanging over my head? Well, I fought in the courts of this and other countries for fourteen years to establish my rights as inventor, even after I had the patents. My associates and I had to spend more than $1,000,000 to prove our rights to the incandescent light, even though our claims had been duly vouched by the United States patent office.
“Everywhere, all around the earth, the pirates kept picking on that little lamp, and they were able to keep me out of the profits on my patents until there were but three years left out of the seventeen. So, while the light was a boon to the world at large, to the inventor the patent was well-nigh useless.”
“The first step is to hire a sharp lawyer—one who can make any judge unfamiliar with technology believe that black is white. They set up the claim that they, and not the inventor, should be recognized as the originator of certain ideas. They boldly strut into court and enjoin the inventor from manufacturing anything from his own creations and formulas, even though the inventor may hold in his hands a patent issued by the United States Government.
“Pirates can readily get all the money they require—millions, if needed—to carry on their contests.”
As always, when facing a problem, Edison came up with a solution. The answer to high-tech piracy was a high-tech court.
The source of endless patent battles.
“A separate and special court. Take the whole business out of the regular judicial system. It has never belonged there.
“What does the average judge of our district courts, or circuit courts of appeal—or even of the Supreme Court, for that matter—know about the technical phases of chemistry or physics? These judges have been lawyers all their lives, and they are—some of them—distinguished for their ability as jurists. But when it comes to understanding a contest over amperes, or ohms, or the atomic theory, or subatomic energy, they can be fooled by a smart lawyer quite as soon as… any farmer from the hinterlands.
“I would appoint, to this special court for trying patent cases, judges from the faculties of colleges of technology, men who know something about science. They could travel around the country and hold court, if need be, in the factories and workshops of the inventors and their competitors, and get first-hand data upon each issue involved in the litigation, just as President Wilson’s War Labor Board, headed by William Howard Taft, went around during the war settling labor disputes in the mills, right on the ground. There wouldn’t be much quibbling on the part of lawyers before these scientist judges. Then, and not till then, will an inventor stand some show of being rewarded for the long, tedious labors he has expended through ceaseless experimentation to gain the fruition of his ideas.”
Perhaps Edison’s court of scientist-judges would make more intelligent decisions about the theft of patented technology. It might also spare businesses the overwhelming costs of time, money, and resources for such suits. (Surely the legal profession will profit more from the pending lawsuit of Apple and Google than the technology developers.)
However, an American court would be of little help in protecting U.S. patents in the global markets. According to our International Trade Commission, China’s theft of Americans’ intellectual property, in 2009 alone, cost U.S. businesses $48 billion and 2.1 million jobs.
“Go back. Tell that fellow that I say the expiration of those patents won’t amount to a hill of beans.
