Jefferson’s Vision of Protecting the Rights Of the Inventor and the Common Man Still Remain Principles of That Office Today
by Thomas O. Jewett
When the Patent Office celebrated its one hundredth birthday, a bust of Thomas Jefferson was dedicated recognizing him as one of the fathers of that institution. Probably no more eminent or more reluctant person held the post as examiner of American patents. As Secretary of State, Jefferson also inherited the Patent Office, a governmental function which he was originally opposed to philosophically. But, he probably did more to encourage the flourishing of American invention through his direction of the patent office than any other American in history. The patent system he created remains the basis for the patent system of today. Much of the present structure, rules, and guidelines, were established by him.
Jefferson, a strong proponent of equality among all people, was not sure if it was fair or even constitutional to grant what was essentially a monopoly to an inventor, who would then be able to grant the use of his idea only to those who could afford it. His feeling that all should have total access to new technology was one of the reasons he never took out a patent on his own inventions. This is consistent in his belief in the natural right of all mankind to share useful improvements without restraints. He felt that inventions can not, in nature, be a subject of property and that the promiscuous granting of patents was not only against the theory of popular government, but would be pernicious in its consequences. (Curtis, 1901) In fact he referred to patents as “embarrassments to the public” (McLaughlin, 1989).
He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody…(letter to Isaac McPherson, 1813 as cited in Kock & Peden, 1972).
Jefferson felt that science and invention were the most certain means of advancing social progress and human happiness, for his goals were essentially humanitarian in science, as they were in all aspects of his life. Science, to Jefferson was an extension, a tool, to help bring about his enlightened political philosophy and a way in which to lead his life (Benson, 1971). Jefferson visualized science and invention as essentially utilitarian. His sight focused upon the benefits that they could bring humanity. His interest in inventions gives a key to his interest in science in general, which was the ultimate practical application of scientific discoveries for the good of man. Therefore, one can see the dilemma he found himself when he became head of the patent office.
Jefferson’s views on patents should not surprise those who are aware of his views about democracy and equality. He opposed patents strongly because he considered it an unfair monopoly. He would later become more in their favor when he discovered the power they had to encourage invention. For Jefferson the purpose of the patent office was to promulgate invention, not protect them. These two reasons are why he formulated a policy for patents that encouraged invention but maintained restrictions on what could be patented. Thus he was able to be true to his beliefs and perform the duties foisted upon him by the Patent Act of 1790.
Prior to 1790 American colonies granted patents by special act of the colonial legislatures; therefore, it was necessary for an inventor to make a special appeal to the governing body of each colony to have his discovery protected. The first American Patent Act was passed by Congress on April 10, 1790. According to the Act, the Secretary of State was to head the new Patent Office which also included the Secretary of War and the Attorney General (Kellogg, 1998).
The neophyte office was to be based on the British system, but there were no precedents, and this new triumvirate was to establish how they wanted the system to function. Jefferson, not a lover of anything British, stepped into this vacuum. He was probably more familiar with science and what an invention looked like than any other person in American government with the possible exception of Franklin.
Jefferson, who called the Office “the Board of Arts” took pride in this duty and gave personal consideration to every application for a patent that was filed between 1790 and 1793. He hoped to be as fair as possible in his administration of patents and to try to develop a system that worked for the benefit of all — both inventors and the common man. The system had to work in such a way as to foster invention without making new inventions untouchable to the people.
He “agreed that inventors should have full rights to their inventions” but worried about the constitutionality of patents and that patents would delay the arrival of new inventions to the public. And, he believed that the “abuse of frivolous patents is likely to cause more inconvenience than is countervail by those really useful.” (As cited in McLaughlin, 1998).
He created a very specific and strict definition for what would obtain a patent and what would not. Jefferson’s first test for judging inventions was that they had to be useful. A patent would not be given when it was an old invention built with a different material or if it was just another application of something already invented (Malone, 1951).
Jefferson often insisted on testing the invention himself, not just reading the specifications or examining the models. He once brought in several chemists to test a devise that claimed to turn salt water into fresh. Even though it showed promise, a patent was not granted because it did not work as expected.
The procedure he developed was careful and time consuming.
The Board of Arts met the last Saturday of every month and then read all the applications received since the last meeting. These lay over for another month, but were not acted on then unless suitable specifications, drafts, or models had been submitted. Beginning in July, 1791, the three members read the descriptions separately in their own lodgings, the Attorney General first in order that he might pass on the propriety of the forms. The criticisms and amendments suggested by all three were consolidated by Remsen, the chief clerk of the department, and were considered by the entire group (Malone, 1951).
The number of applications during the two years of Jefferson’s term was 114 and he probably examined each one. About half of those who petitioned for patents received them because of Jefferson’s strict rules. Only sixty-seven patents were granted during his tenure, among them to Eli Whitney for the cotton gin. Jefferson’s first test of utility for granting a patent can be seen in his correspondence to Whitney:
As the state of Virginia, of which I am, carries on household manufactures of cotton to a great extent, as I also do myself, and one of our great embarrassments is the clearing the cotton of the seed, I feel a considerable interest in the success of your invention for family use. Permit me therefore to ask information from you on these points. Has the machine been thoroughly tried in the ginning of cotton, or is it as yet but a machine of theory? What quantity of cotton has it cleaned on average of several days, & worked by had, & by how many hands? What will be the cost of one of them made to be worked by hand? Favorable answers to these questions would induce me to engage on of them to be forwarded to Richmond for me….
(letter to Eli Whitney, November 16, 1793, as cited in Kock & Peden).
Jefferson, always the scientist, warmed to his duties and became more open to the idea of patents when he saw how many inventors put forth their ideas as a result of the new system of protection, claiming that “it had given spring to invention beyond my conception.” (As cited in Malone, 1951). It was also, basically a one man operation with Jefferson personally assuming the majority of the responsibility. So much so, that it is legend in the Patent Office that he stored conferred patents in a shoe box under his bed, hence the term for patent document housed in the public search room — “the shoes” (firstname.lastname@example.org).
Jefferson soon realized, though, that as Secretary of State, he needed to relieve himself of his beloved patent duties since he felt that more time was required for the job than he was able to give. To take care of the expanding amount of patents being asked for, Jefferson drafted his own patent bill in 1791. Congress did not enact this bill but in 1793 passed another. The act of 1793 allowed Jefferson to be relieved of his duties, but to his dismay allowed the granting of patents almost entirely an automatic matter, which was opposite the system which Jefferson championed.
The 1793 system, which caused great harm, did not last. A new code was instituted in 1836. It was a compromise between the strictness of Jefferson and the free-wheeling acceptance found in the 1793 act (Malone, 1951).
This bill was the basis of our patent system until contemporary times. Jefferson’s hand and influence giving protection to the inventor but access to the user, as well as the utility of the invention are still benchmarks of the United States Patent Office. He truly, should be recognized as a “Father of Invention.”
Benson, G. Randolph. (1971). Thomas Jefferson as Social Scientist.
Fairleigh Dickinson University Press, Cranbury, N. J.
Curtis, William Elroy. (1901). The True Thomas Jefferson. A. W.
Elson & Co., Philadelphia.
Kock, A. & Peden, W. (1972). The Life and Selected Writings of
Thomas Jefferson. Modern Library, New York.
Kellogg, Yvonne. (1998). “Historical Background of the Patent Office”.
Malone, Dumas. (1951). Jefferson and the Rights of Man. Little,
Brown and Company. New York.
McLaughlin, Bridget. (1998).
“The Patent System”. http://cti.itc.virginia.edu