MacLoud & Jackson - Early Patent

Patent law is by conception individualistic, as patents are granted to singular inventors for the protection of their work for a limited number of years. Nevertheless, inventors before the late nineteenth-century worked in anonymity. In her essay, "Concepts of Invention and the Patent Controversy in Victorian Britain," Christine MacLeod argues that a debate erupting over changes in patent law in the mid-nineteenth century was the impetus for science borrowing the verbiage of Romantic "original genius." The success enjoyed by defenders of the patent in the later nineteenth-century has produced the heroic ideology "elevating the successful inventor to a creative genius" (MacLeod, 141). This ideology, however, was not universally embraced.

The anti-patent argument took the deterministic viewpoint that dominated patent law from its inception, emphasizing the collaborative and collective nature of scientific production and focusing on the building of one discovery upon the work of all predecessors. Invention was seen as following a "sociological, rather than an individualistic" impetus, responding to the needs of society rather than the personal creative powers of the inventor (MacLeod, 146). In this approach, the abolitionist argument denied the property rights of the inventor in his work, taking up the book debates of earlier decades as their argument. Like the opponents of copyright, however, the supporters of the deterministic viewpoint ultimately lost the debate to the Romantics.
The defeat of the deterministic perspective affected the subsequent revisions to patent law, firmly establishing the rhetoric of literary intellectual property -that of the creative genius ideology developed during the Romantic period- in the legal foundations of patent law:
No two men ever wrote the same book at the same time…but he had frequently found that two authors writing almost simultaneously conveyed precisely the same ideas…Exactly so, if two men invented similar machines simultaneously, it was never found they carried out their ideas precisely in the same mechanical way… The inventor made use of the laws of nature just as an author of a book used the common language of mankind. (quoted in MacLeod, 152-3)
The patent system and the debate that it spurred within the scientific community of England in the late nineteenth-century were integral forces in the development of this individualistic and heroic conception of invention and scientific intellectual production: an ideology still central to patent law.
These developments in England have parallels in other nations. For example, Myles Jackson recently found that the transportation of literary fiction into the scientific world occurred at an earlier date in Germany. Jackson argues that Joseph von Fraunhofer's scientific writings gained him entry into the German Republic of Letters despite his position as an artisan rather than an experimental natural philosopher. The case of Fraunhofer raised questions of authorship in the sciences during the late eighteenth and early nineteenth centuries, as his situation combined issues of class, the market, and creative genius. It should be noted that while this case created a debate within the Republic of Letters, the shift was not complete until a later historical moment, as is evident in Christine MacLeod's article discussed above.

Jackson, Myles W. "Can Artisans Be Scientific Authors?: The unique case of Fraunhofer's artisanal optics and the German Republic of Letters" from Mario Biagioli and Peter Galison, eds. Scientific Authorship: Credit and Intellectual Property in Science. NY: Routledge, 2003.

MacLeod, Christine. "Concepts of Invention and the Patent Controversy in Victorian Britain." Technological Change: methods and themes in the history of technology and medicine. v. 1. Ed, Robert Fox. Austrailia: Harwood Academic, 1996.

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