- 1 B. Zorina Khan, Bowdoin College
- 2 Europe
- 3 The Patent System in the United States
- 4 The Japanese Patent System
- 5 Harmonization of International Patent Laws
- 6 Conclusion
- 7 Additional Reading
B. Zorina Khan, Bowdoin College
Such scholars as Max Weber and Douglass North have suggested that intellectual property systems had an important impact on the course of economic development. However, questions from other eras are still current today, ranging from whether patents and copyrights constitute optimal policies toward intellectual inventions and their philosophical rationale to the growing concerns of international political economy. Throughout their history, patent and copyright regimes have confronted and accommodated technological innovations that were no less significant and contentious for their time than those of the twenty-first century. An economist from the nineteenth century would have been equally familiar with considerations about whether uniformity in intellectual property rights across countries harmed or benefited global welfare and whether piracy might be to the advantage of developing countries. The nineteenth and early twentieth centuries in particular witnessed considerable variation in the intellectual property policies that individual countries implemented, and this allows economic historians to determine the consequences of different rules and standards.
This article outlines crucial developments in the patent policies of Europe, the United States, and follower countries. The final section discusses the harmonization of international patent laws that occurred after the middle of the nineteenth century.
The British Patent System
The grant of exclusive property rights vested in patents developed from medieval guild practices in Europe. Britain in particular is noted for the establishment of a patent system which has been in continuous operation for a longer period than any other in the world. English monarchs frequently used patents to reward favorites with privileges, such as monopolies over trade that increased the retail prices of commodities. It was not until the seventeenth century that patents were associated entirely with awards to inventors, when Section 6 of the Statute of Monopolies (21 Jac. I. C. 3, 1623, implemented in 1624) repealed the practice of royal monopoly grants to all except patentees of inventions. The Statute of Monopolies allowed patent rights of fourteen years for “the sole making or working of any manner of new manufacture within this realm to the first and true inventor…” Importers of foreign discoveries were allowed to obtain domestic patent protection in their own right.
The British patent system established significant barriers in the form of prohibitively high costs that limited access to property rights in invention to a privileged few. Patent fees for England alone amounted to £100-£120 ($585) or approximately four times per capita income in 1860. The fee for a patent that also covered Scotland and Ireland could cost as much as £350 pounds ($1,680). Adding a co-inventor was likely to increase the costs by another £24. Patents could be extended only by a private Act of Parliament, which required political influence, and extensions could cost as much as £700. These constraints favored the elite class of those with wealth, political connections or exceptional technical qualifications, and consciously created disincentives for inventors from humble backgrounds. Patent fees provided an important source of revenues for the Crown and its employees, and created a class of administrators who had strong incentives to block proposed reforms.
In addition to the monetary costs, complicated administrative procedures that inventors had to follow implied that transactions costs were also high. Patent applications for England alone had to pass through seven offices, from the Home Secretary to the Lord Chancellor, and twice required the signature of the Sovereign. If the patent were extended to Scotland and Ireland it was necessary to negotiate another five offices in each country. The cumbersome process of patent applications (variously described as “mediaeval” and “fantastical”) afforded ample material for satire, but obviously imposed severe constraints on the ordinary inventor who wished to obtain protection for his discovery. These features testify to the much higher monetary and transactions costs, in both absolute and relative terms, of obtaining property rights to inventions in England in comparison to the United States. Such costs essentially restricted the use of the patent system to inventions of high value and to applicants who already possessed or could raise sufficient capital to apply for the patent. The complicated system also inhibited the diffusion of information and made it difficult, if not impossible, for inventors outside of London to readily conduct patent searches. Patent specifications were open to public inspection on payment of a fee, but until 1852 they were not officially printed, published or indexed. Since the patent could be filed in any of three offices in Chancery, searches of the prior art involved much time and inconvenience. Potential patentees were well advised to obtain the help of a patent agent to aid in negotiating the numerous steps and offices that were required for pursuit of the application in London.
In the second half of the eighteenth century, nation-wide lobbies of manufacturers and patentees expressed dissatisfaction with the operation of the British patent system. However, it was not until after the Crystal Palace Exhibition in 1851 that their concerns were finally addressed, in an effort to meet the burgeoning competition from the United States. In 1852 the efforts of numerous societies and of individual engineers, inventors and manufacturers over many decades were finally rewarded. Parliament approved the Patent Law Amendment Act, which authorized the first major adjustment of the system in two centuries. The new patent statutes incorporated features that drew on testimonials to the superior functioning of the American patent regime. Significant changes in the direction of the American system included lower fees and costs, and the application procedures were rationalized into a single Office of the Commissioners of Patents for Inventions, or “Great Seal Patent Office.”
The 1852 patent reform bills included calls for a U.S.-style examination system but this was amended in the House of Commons and the measure was not included in the final version. Opponents were reluctant to vest examiners with the necessary discretionary power, and pragmatic observers pointed to the shortage of a cadre of officials with the required expertise. The law established a renewal system that required the payment of fees in installments if the patentee wished to maintain the patent for the full term. Patentees initially paid £25 and later installments of £50 (after three years) and £100 (after seven years) to maintain the patent for a full term of fourteen years. Despite the relatively low number of patents granted in England, between 1852 and 1880 the patent office still made a profit of over £2 million. Provision was made for the printing and publication of the patent records. The 1852 reforms undoubtedly instituted improvements over the former opaque procedures, and the lower fees had an immediate impact. Nevertheless, the system retained many of the former features that had implied that patents were in effect viewed as privileges rather than merited rights, and only temporarily abated expressions of dissatisfaction.
One source of dissatisfaction that endured until the end of the nineteenth century was the state of the common law regarding patents. At least partially in reaction to a history of abuse of patent privileges, patents were widely viewed as monopolies that restricted community rights, and thus to be carefully monitored and narrowly construed. Second, British patents were granted “by the grace of the Crown” and therefore were subject to any restrictions that the government cared to impose. According to the statutes, as a matter of national expediency, patents were to be granted if “they be not contrary to the law, nor mischievous to the State, by raising prices of commodities at home, or to the hurt of trade, or generally inconvenient.” The Crown possessed the ability to revoke any patents that were deemed inconvenient or contrary to public policy. After 1855, the government could also appeal to a need for official secrecy to prohibit the publication of patent specifications in order to protect national security and welfare. Moreover, the state could commandeer a patentee’s invention without compensation or consent, although in some cases the patentee was paid a royalty.
Policies towards patent assignments and trade in intellectual property rights also constrained the market for inventions. Ever vigilant to protect an unsuspecting public from fraudulent financial schemes on the scale of the South Sea Bubble, ownership of patent rights was limited to five investors (later extended to twelve). Nevertheless, the law did not offer any relief to the purchaser of an invalid or worthless patent, so potential purchasers were well advised to engage in extensive searches before entering into contracts. When coupled with the lack of assurance inherent in a registration system, the purchase of a patent right involved a substantive amount of risk and high transactions costs — all indicative of a speculative instrument. It is therefore not surprising that the market for assignments and licenses seems to have been quite limited, and even in the year after the 1852 reforms only 273 assignments were recorded.
In 1883 new legislation introduced procedures that were somewhat simpler, with fewer steps. The fees fell to £4 for the initial term of four years, and the remaining £150 could be paid in annual increments. For the first time, applications could be forwarded to the Patent Office through the post office. This statute introduced opposition proceedings, which enabled interested parties to contest the proposed patent within two months of the filing of the patent specifications. Compulsory licenses were introduced in 1883 (and strengthened in 1919 as “licenses of right”) for fear that foreign inventors might injure British industry by refusing to grant other manufacturers the right to use their patent. The 1883 act provided for the employment of “examiners” but their activity was limited to ensuring that the material was patentable and properly described. Indeed, it was not until 1902 that the British system included an examination for novelty, and even then the process was not regarded as stringent as in other countries. Many new provisions were designed to thwart foreign competition. Until 1907 patentees who manufactured abroad were required to also make the patented product in Britain. Between 1919 and 1949 chemical products were excluded from patent protection to counter the threat posed by the superior German chemical industry. Licenses of right enabled British manufacturers to compel foreign patentees to permit the use of their patents on pharmaceuticals and food products.
In sum, changes in the British patent system were initially unforthcoming despite numerous calls for change. Ultimately, the realization that England’s early industrial and technological supremacy was threatened by the United States and other nations in Europe led to a slow process of revisions that lasted well into the twentieth century. One commentator summed up the series of developments by declaring that the British patent system at the time of writing (1967) remained essentially “a modified version of a pre-industrial economic institution.”
The French Patent System
Early French policies towards inventions and innovations in the eighteenth century were based on an extensive but somewhat arbitrary array of rewards and incentives. During this period inventors or introducers of inventions could benefit from titles, pensions that sometimes extended to spouses and offspring, loans (some interest-free), lump-sum grants, bounties or subsidies for production, exemptions from taxes, or monopoly grants in the form of exclusive privileges. This complex network of state policies towards inventors and their inventions was revised but not revoked after the outbreak of the French Revolution.
The modern French patent system was established according to the laws of 1791 (amended in 1800) and 1844. Patentees filed through a simple registration system without any need to specify what was new about their claim, and could persist in obtaining the grant even if warned that the patent was likely to be legally invalid. On each patent document the following caveat was printed: “The government, in granting a patent without prior examination, does not in any manner guarantee either the priority, merit or success of an invention.” The inventor decided whether to obtain a patent for a period of five, ten or fifteen years, and the term could only be extended through legislative action. Protection extended to all methods and manufactured articles, but excluded theoretical or scientific discoveries without practical application, financial methods, medicines, and items that could be covered by copyright.
The 1791 statute stipulated patent fees that were costly, ranging from 300 livres through 1500 livres, based on the declared term of the patent. The 1844 statute maintained this policy since fees were set at 500 francs ($100) for a five year patent, 1000 francs for a 10 year patent and 1500 for a patent of fifteen years, payable in annual installments. In an obvious attempt to limit international diffusion of French discoveries, until 1844 patents were voided if the inventor attempted to obtain a patent overseas on the same invention. On the other hand, the first introducer of an invention covered by a foreign patent would enjoy the same “natural rights” as the patentee of an original invention or improvement. Patentees had to put the invention into practice within two years from the initial grant, or face a tribunal which had the power to repeal the patent, unless the patentee could point to unforeseen events which had prevented his complying with the provisions of the law. The rights of patentees were also restricted if the invention related to items that were controlled by the French government, such as printing presses and firearms.
In return for the limited monopoly right, the patentee was expected to describe the invention in such terms that a workman skilled in the arts could replicate the invention and this information was expected to be made public. However, no provision was made for the publication or diffusion of these descriptions. At least until the law of April 7 1902, specifications were only available in manuscript form in the office in which they had originally been lodged, and printed information was limited to brief titles in patent indexes. The attempt to obtain information on the prior art was also inhibited by restrictions placed on access: viewers had to state their motives; foreigners had to be assisted by French attorneys; and no extract from the manuscript could be copied until the patent had expired.
The state remained involved in the discretionary promotion of invention and innovation through policies beyond the granting of patents. In the first place, the patent statutes did not limit their offer of potential appropriation of returns only to property rights vested in patents. The inventor of a discovery of proven utility could choose between a patent or making a gift of the invention to the nation in exchange for an award from funds that were set aside for the encouragement of industry. Second, institutions such as the Société d’encouragement pour l’industrie nationale awarded a number of medals each year to stimulate new discoveries in areas they considered to be worth pursuing, and also to reward deserving inventors and manufacturers. Third, the award of assistance and pensions to inventors and their families continued well into the nineteenth century. Fourth, at times the Society purchased patent rights and turned the invention over into the public domain.
The basic principles of the modern French patent system were evident in the early French statutes and were retained in later revisions. Since France during the ancien régime was likely the first country to introduce systematic examinations of applications for privileges, it is somewhat ironic that commentators point to the retention of registration without prior examination as the defining feature of the “French system” until 1978. In 1910 fees remained high, although somewhat lower in real terms, at one hundred francs per year. Working requirements were still in place, and patentees were not allowed to satisfy the requirement by importing the article even if the patentee had manufactured it in another European country. However, the requirement was waived if the patentee could persuade the tribunal that the patent was not worked because of unavoidable circumstances.
Similar problems were evident in the market for patent rights. Contracts for patent assignments were filed in the office of the Prefect for the district, but since there was no central source of information it was difficult to trace the records for specific inventions. The annual fees for the entire term of the patent had to be paid in advance if the patent was assigned to a second party. Like patents themselves, assignments and licenses were issued with a caveat emptor clause. This was partially due to the nature of patent property under a registration system, and partially to the uncertainties of legal jurisprudence in this area. For both buyer and seller, the uncertainties associated with the exchange likely reduced the net expected value of trade.
The Spanish Patent System
French patent laws were adopted in its colonies, but also diffused to other countries through its influence on Spain’s system following the Spanish Decree of 1811. The Spanish experience during the nineteenth century is instructive since this country experienced lower rates and levels of economic development than the early industrializers. Like its European neighbors, early Spanish rules and institutions were vested in privileges which had lasting effects that could be detected even in the later period. The per capita rate of patenting in Spain was lower than other major European countries, and foreigners filed the majority of patented inventions. Between 1759 and 1878, roughly one half of all grants were to citizens of other countries, notably France and (to a lesser extent) Britain. Thus, the transfer of foreign technology was a major concern in the political economy of Spain.
This dependence on foreign technologies was reflected in the structure of the Spanish patent system, which permitted patents of introduction as well as patents for invention. Patents of introduction were granted to entrepreneurs who wished to produce foreign technologies that were new to Spain, with no requirement of claims to being the true inventor. Thus, the sole objective of these instruments was to enhance innovation and production in Spain. Since the owners of introduction patents could not prevent third parties from importing similar machines from abroad, they also had an incentive to maintain reasonable pricing structures. Introduction patents had a term of only five years, with a cost of 3000 reales, whereas the fees of patents for invention varied from 1000 reales for five years, 3000 reales for ten years, and 6000 reales for a term of fifteen years. Patentees were required to work the patent within one year, and about a quarter of patents granted between 1826 and 1878 were actually implemented. Since patents of introduction had a brief term, they encouraged the production of items with high expected profits and a quick payback period, after which monopoly rights expired, and the country could benefit from its diffusion.
The German Patent System
The German patent system was influenced by developments in the United States, and itself influenced legislation in Argentina, Austria, Brazil, Denmark, Finland, Holland, Norway, Poland, Russia and Sweden. The German Empire was founded in 1871, and in the first six years each state adopted its own policies. Alsace-Lorraine favored a French-style system, whereas others such as Hamburg and Bremen did not offer patent protection. However, after strong lobbying by supporters of both sides of the debate regarding the merits of patent regimes, Germany passed a unified national Patent Act of 1877.
The 1877 statute created a centralized administration for the grant of a federal patent for original inventions. Industrial entrepreneurs succeeded in their objective of creating a “first to file” system, so patents were granted to the first applicant rather than to the “first and true inventor,” but in 1936 the National Socialists introduced a first to invent system. Applications were examined by examiners in the Patent Office who were expert in their field. During the eight weeks before the grant, patent applications were open to the public and an opposition could be filed denying the validity of the patent. German patent fees were deliberately high to eliminate protection for trivial inventions, with a renewal system that required payment of 30 marks for the first year, 50 marks for the second year, 100 marks for the third, and 50 marks annually after the third year. In 1923 the patent term was extended from fifteen years to eighteen years.
German patent policies encouraged diffusion, innovation and growth in specific industries with a view to fostering economic development. Patents could not be obtained for food products, pharmaceuticals or chemical products, although the process through which such items were produced could be protected. It has been argued that the lack of restrictions on the use of innovations and the incentives to patent around existing processes spurred productivity and diffusion in these industries. The authorities further ensured the diffusion of patent information by publishing claims and specification before they were granted. The German patent system also facilitated the use of inventions by firms, with the early application of a “work for hire” doctrine that allowed enterprises access to the rights and benefits of inventions of employees.
Although the German system was close to the American patent system, it was in other ways more stringent, resulting in patent grants that were lower in number, but likely higher in average value. The patent examination process required that the patent should be new, nonobvious, and also capable of producing greater efficiency. As in the United States, once granted, the courts adopted an extremely liberal attitude in interpreting and enforcing existing patent rights. Penalties for willful infringement included not only fines, but also the possibility of imprisonment. The grant of a patent could be revoked after the first three years if the patent was not worked, if the owner refused to grant licenses for the use of an invention that was deemed in the public interest, or if the invention was primarily being exploited outside of Germany. However, in most cases, a compulsory license was regarded as adequate.
After 1891 a parallel and weaker version of patent protection could be obtained through a gebrauchsmuster or utility patent (sometimes called a petty patent), which was granted through a registration system. Patent protection was available for inventions that could be represented by drawings or models with only a slight degree of novelty, and for a limited term of three years (renewable once for a total life of six years). About twice as many utility patents as examined patents were granted early in the 1930s. Patent protection based on co-existing systems of registration and examination appears to have served distinct but complementary purposes. Remedies for infringement of utility patents also included fines and imprisonment.
Other European Patent Systems
Very few developed countries would now seriously consider eliminating statutory protection for inventions, but in the second half of the nineteenth century the “patent controversy” in Europe pitted advocates of patent rights against an effective abolitionist movement. For a short period, the abolitionists were strong enough to obtain support for dismantling patent systems in a number of European countries. In 1863 the Congress of German Economists declared “patents of invention are injurious to common welfare;” and the movement achieved its greatest victory in Holland, which repealed its patent legislation in 1869. The Swiss cantons did not adopt patent protection until 1888, with an extension in the scope of coverage in 1907. The abolitionists based their arguments on the benefits of free trade and competition, and viewed patents as part of an anticompetitive and protectionist strategy analogous to tariffs on imports. Instead of state-sponsored monopoly awards, they argued, inventors could be rewarded by alternative policies, such as stipends from the government, payments from private industry or associations formed for that purpose, or simply through the lead time that the first inventor acquired over competitors by virtue of his prior knowledge.
According to one authority, the Netherlands eventually reinstated its patent system in 1912 and Switzerland introduced patent laws in 1888 largely because of a keen sense of morality, national pride and international pressure to do so. The appeal to “morality” as an explanatory factor is incapable of explaining the timing and nature of changes in strategies. Nineteenth-century institutions were not exogenous and their introduction or revisions generally reflected the outcome of a self-interested balancing of costs and benefits. The Netherlands and Switzerland were initially able to benefit from their ability to free-ride on the investments that other countries had made in technological advances. As for the cost of lower incentives for discoveries by domestic inventors, the Netherlands was never vaunted as a leader in technological innovation, and this is reflected in their low per capita patenting rates both before and after the period without patent laws. They recorded a total of only 4561 patents in the entire period from 1800 to 1869 and, even after adjusting for population, the Dutch patenting rate in 1869 was a mere 13.4 percent of the U.S. patenting rate. Moreover, between 1851 and 1865 88.6 percent of patents in the Netherlands had been granted to foreigners. After the patent laws were reintroduced in 1912, the major beneficiaries were again foreign inventors, who obtained 79.3 of the patents issued in the Netherlands. Thus, the Netherlands had little reason to adopt patent protection, except for external political pressures and the possibility that some types of foreign investment might be deterred.
The case was somewhat different for Switzerland, which was noted for being innovative, but in a narrow range of pursuits. Since the scale of output and markets were quite limited, much of Swiss industry generated few incentives for invention. A number of the industries in which the Swiss excelled, such as hand-made watches, chocolates and food products, were less susceptible to invention that warranted patent protection. For instance, despite the much larger consumer market in the United States, during the entire nineteenth century fewer than 300 U.S. patents related to chocolate composition or production. Improvements in pursuits such as watch-making could be readily protected by trade secrecy as long as the industry remained artisanal. However, with increased mechanization and worker mobility, secrecy would ultimately prove to be ineffective, and innovators would be unable to appropriate returns without more formal means of exclusion.
According to contemporary observers, the Swiss resolved to introduce patent legislation not because of a sudden newfound sense of morality, but because they feared that American manufacturers were surpassing them as a result of patented innovations in the mass production of products such as boots, shoes and watches. Indeed, before 1890, American inventors obtained more than 2068 patents on watches, and the U.S. watch making industry benefited from mechanization and strong economies of scale that led to rapidly falling prices of output, making them more competitive internationally. The implications are that the rates of industrial and technical progress in the United States were more rapid, and technological change was rendering artisanal methods obsolete in products with mass markets. Thus, the Swiss endogenously adopted patent laws because of falling competitiveness in their key industrial sectors.
What was the impact of the introduction of patent protection in Switzerland? Foreign inventors could obtain patents in the United States regardless of their domestic legislation, so we can approach this question tangentially by examining the patterns of patenting in the United States by Swiss residents before and after the 1888 reforms. Between 1836 and 1888, Swiss residents obtained a grand total of 585 patents in the United States. Fully a third of these patents were for watches and music boxes, and only six were for textiles or dyeing, industries in which Switzerland was regarded as competitive early on. Swiss patentees were more oriented to the international market, rather than the small and unprotected domestic market where they could not hope to gain as much from their inventions. For instance, in 1872 Jean-Jacques Mullerpack of Basel collaborated with Leon Jarossonl of Lille, France to invent an improvement in dyeing black with aniline colors, which they assigned to William Morgan Brown of London, England. Another Basel inventor, Alfred Kern, assigned his 1883 patent for violet aniline dyes to the Badische Anilin and Soda Fabrik of Mannheim, Germany.
After the patent reforms, the rate of Swiss patenting in the United States immediately increased. Swiss patentees obtained an annual average of 32.8 patents in the United States in the decade before the patent law was enacted in Switzerland. After the Swiss allowed patenting, this figure increased to an average of 111 each year in the following six years, and in the period from 1895 to 1900 a total of 821 Swiss patents were filed in the United States. The decadal rate of patenting per million residents increased from 111.8 for the ten years up to the reforms, to 451 per million residents in the 1890s, 513 in the 1900s, 458 in the 1910s and 684 in the 1920s. U.S. statutes required worldwide novelty, and patents could not be granted for discoveries that had been in prior use, so the increase was not due to a backlog of trade secrets that were now patented.
Moreover, the introduction of Swiss patent laws also affected the direction of inventions that Swiss residents patented in the United States. After the passage of the law, such patents covered a much broader range of inventions, including gas generators, textile machines, explosives, turbines, paints and dyes, and drawing instruments and lamps. The relative importance of watches and music boxes immediately fell from about a third before the reforms to 6.2 percent and 2.1 percent respectively in the 1890s and even further to 3.8 percent and 0.3 percent between 1900 and 1909. Another indication that international patenting was not entirely unconnected to domestic Swiss inventions can be discerned from the fraction of Swiss patents (filed in the U.S.) that related to process innovations. Before 1888, 21 percent of the patent specifications mentioned a process. Between 1888 and 1907, the Swiss statutes included the requirement that patents should include mechanical models, which precluded patenting of pure processes. The fraction of specifications that mentioned a process fell during the period between 1888 and 1907, but returned to 22 percent when the restriction was modified in 1907.
In short, although the Swiss experience is often cited as proof of the redundancy of patent protection, the limitations of this special case should be taken into account. The domestic market was quite small and offered minimal opportunity or inducements for inventors to take advantage of economies of scale or cost-reducing innovations. Manufacturing tended to cluster in a few industries where innovation was largely irrelevant, such as premium chocolates, or in artisanal production that was susceptible to trade secrecy, such as watches and music boxes. In other areas, notably chemicals, dyes and pharmaceuticals, Swiss industries were export-oriented, but even today their output tends to be quite specialized and high-valued rather than mass-produced. Export-oriented inventors were likely to have been more concerned about patent protection in the important overseas markets, rather than in the home market. Thus, between 1888 and 1907, although Swiss laws excluded patents for chemicals, pharmaceuticals and dyes, 20.7 percent of the Swiss patents filed in the United States were for just these types of inventions. The scanty evidence on Switzerland suggests that the introduction of patent rights was accompanied by changes in the rate and direction of inventive activity. In any event, both the Netherlands and Switzerland featured unique circumstances that seem to hold few lessons for developing countries today.
The Patent System in the United States
The United States stands out as having established one of the most successful patent systems in the world. Over six million patents have been issued since 1790, and American industrial supremacy has frequently been credited to its favorable treatment of inventors and the inducements held out for inventive activity. The first Article of the U.S. Constitution included a clause 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.” Congress complied by passing a patent statute in April 1790. The United States created in 1836 the first modern patent institution in the world, a system whose features differed in significant respects from those of other major countries. The historical record indicates that the legislature’s creation of a uniquely American system was a deliberate and conscious process of promoting open access to the benefits of private property rights in inventions. The laws were enforced by a judiciary which was willing to grapple with difficult questions such as the extent to which a democratic and market-oriented political economy was consistent with exclusive rights. Courts explicitly attempted to implement decisions that promoted economic growth and social welfare.
The primary feature of the “American system” is that all applications are subject to an examination for conformity with the laws and for novelty. An examination system was set in place in 1790, when a select committee consisting of the Secretary of State (Thomas Jefferson), the Attorney General and the Secretary of War scrutinized the applications. These duties proved to be too time-consuming for highly ranked officials who had other onerous duties, so three years later it was replaced by a registration system. The validity of patents was left up to the district courts, which had the power to set in motion a process that could end in the repeal of the patent. However by the 1830s this process was viewed as cumbersome and the statute that was passed in 1836 set in place the essential structure of the current patent system. In particular, the 1836 Patent Law established the Patent Office, whose trained and technically qualified employees were authorized to examine applications. Employees of the Patent Office were not permitted to obtain patent rights. In order to constrain the ability of examiners to engage in arbitrary actions, the applicant was given the right to file a bill in equity to contest the decisions of the Patent Office with the further right of appeal to the Supreme Court of the United States.
American patent policy likewise stands out in its insistence on affordable fees. The legislature debated the question of appropriate fees, and the first patent law in 1790 set the rate at the minimal sum of $3.70 plus copy costs. In 1793 the fees were increased to $30, and were maintained at this level until 1861. In that year, they were raised to $35, and the term of the patent was changed from fourteen years (with the possibility of an extension) to seventeen years (with no extensions.) The 1869 Report of the Commissioner of Patents compared the $35 fee for a US patent to the significantly higher charges in European countries such as Britain, France, Russia ($450), Belgium ($420) and Austria ($350). The Commissioner speculated that both the private and social costs of patenting were lower in a system of impartial specialized examiners, than under a system where similar services were performed on a fee-per-service basis by private solicitors. He pointed out that in the U.S. the fees were not intended to exact a price for the patent privilege or to raise revenues for the state – the disclosure of information was the sole price for the patent property right – rather, they were imposed merely to cover the administrative expenses of the Office.
The basic parameters of the U.S. patent system were transparent and predictable, in itself an aid to those who wished to obtain patent rights. In addition, American legislators were concerned with ensuring that information about the stock of patented knowledge was readily available and diffused rapidly. As early as 1805 Congress stipulated that the Secretary of State should publish an annual list of patents granted the preceding year, and after 1832 also required the publication in newspapers of notices regarding expired patents. The Patent Office itself was a source of centralized information on the state of the arts. However, Congress was also concerned with the question of providing for decentralized access to patent materials. The Patent Office maintained repositories throughout the country, where inventors could forward their patent models at the expense of the Patent Office. Rural inventors could apply for patents without significant obstacles, because applications could be submitted by mail free of postage.
American laws employed the language of the English statute in granting patents to “the first and true inventor.” Nevertheless, unlike in England, the phrase was used literally, to grant patents for inventions that were original in the world, not simply within U.S. borders. American patent laws provided strong protection for citizens of the United States, but varied over time in its treatment of foreign inventors. Americans could not obtain patents for imported discoveries, but the earliest statutes of 1793, 1800 and 1832, restricted patent property to citizens or to residents who declared that they intended to become citizens. As such, while an American could not appropriate patent rights to a foreign invention, he could freely use the idea without any need to bear licensing or similar costs that would otherwise have been due if the inventor had been able to obtain a patent in this country. In 1836, the stipulations on citizenship or residency were removed, but were replaced with discriminatory patent fees: foreigners could obtain a patent in the U.S. for a fee of three hundred dollars, or five hundred if they were British. After 1861 patent rights (with the exception of caveats) were available to all applicants on the same basis without regard to nationality.
The American patent system was based on the presumption that social welfare coincided with the individual welfare of inventors. Accordingly, legislators rejected restrictions on the rights of American inventors. However, the 1832 and 1836 laws stipulated that foreigners had to exploit their patented invention within eighteen months. These clauses seem to have been interpreted by the courts in a fairly liberal fashion, since alien patentees “need not prove that they hawked the patented improvement to obtain a market for it, or that they endeavored to sell it to any person, but that it rested upon those who sought to defeat the patent to prove that the plaintiffs neglected or refused to sell the patented invention for reasonable prices when application was made to them to purchase.” Such provisions proved to be temporary aberrations and were not included in subsequent legislation. Working requirements or compulsory licenses were regarded as unwarranted infringements of the rights of “meritorious inventors,” and incompatible with the philosophy of U.S. patent grants. Patentees were not required to pay annuities to maintain their property, there were no opposition proceedings, and once granted a patent could not be revoked unless there was proven evidence of fraud.
One of the advantages of a system that secures property rights is that it facilitates contracts and trade. Assignments provide a straightforward index of the effectiveness of the American system, since trade in inventions would hardly proliferate if patent rights were uncertain or worthless. An extensive national network of licensing and assignments developed early on, aided by legal rulings that overturned contracts for useless or fraudulent patents. In 1845 the Patent Office recorded 2,108 assignments, which can be compared to the cumulative stock of 7188 patents that were still in force in that year. By the 1870s the number of assignments averaged over 9000 assignments per year, and this increased in the next decade to over 12,000 transactions recorded annually. This flourishing market for patented inventions provided an incentive for further inventive activity for inventors who were able to appropriate the returns from their efforts, and also linked patents and productivity growth.
Property rights are worth little unless they can be legally enforced in a consistent, certain, and predictable manner. A significant part of the explanation for the success of the American intellectual property system relates to the efficiency with which the laws were interpreted and implemented. United States federal courts from their inception attempted to establish a store of doctrine that fulfilled the intent of the Constitution to secure the rights of intellectual property owners. The judiciary acknowledged that inventive efforts varied with the extent to which inventors could appropriate the returns on their discoveries, and attempted to ensure that patentees were not unjustly deprived of the benefits from their inventions. Numerous reported decisions before the early courts declared that, rather than unwarranted monopolies, patent rights were “sacred” and to be regarded as the just recompense to inventive ingenuity. Early courts had to grapple with a number of difficult issues, such as the appropriate measure of damages, disputes between owners of conflicting patents, and how to protect the integrity of contracts when the law altered. Changes inevitably occurred when litigants and judiciary both adapted to a more complex inventive and economic environment. However, the system remained true to the Constitution in the belief that the defense of rights in patented invention was important in fostering industrial and economic development.
Economists such as Joseph Schumpeter have linked market concentration and innovation, and patent rights are often felt to encourage the establishment of monopoly enterprises. Thus, an important aspect of the enforcement of patents and intellectual property in general depends on competition or antitrust policies. The attitudes of the judiciary towards patent conflicts are primarily shaped by their interpretation of the monopoly aspect of the patent grant. The American judiciary in the early nineteenth century did not recognize patents as monopolies, arguing that patentees added to social welfare through innovations which had never existed before, whereas monopolists secured to themselves rights that already belong to the public. Ultimately, the judiciary came to openly recognize that the enforcement and protection of all property rights involved trade-offs between individual monopoly benefits and social welfare.
The passage of the Sherman Act in 1890 was associated with a populist emphasis on the need to protect the public from corporate monopolies, including those based on patent protection, and raised the prospect of conflicts between patent policies and the promotion of social welfare through industrial competition. Firms have rarely been charged directly with antitrust violations based on patent issues. At the same time, a number of landmark restraint of trade lawsuits have involved technological innovators. In the early decades of the 20th century these included innovative enterprises such as John Deere & Co., American Can and International Harvester, through to the numerous cases since 1970 against IBM, Xerox, Eastman Kodak and, most recently, Intel and Microsoft. The evidence suggests that, holding other factors constant, more innovative firms and those with larger patent stocks are more likely to be charged with antitrust violations. A growing fraction of cases involve firms jointly charged with antitrust violations that are linked to patent based market power and to concerns about “innovation markets.”
The Japanese Patent System
Japan emerged from the Meiji era as a follower nation which deliberately designed institutions to try to emulate those of the most advanced industrial countries. Accordingly, in 1886 Takahashi Korekiyo was sent on a mission to examine patent systems in Europe and the United States. The Japanese envoy was not favorably impressed with the European countries in this regard. Instead, he reported: ” … we have looked about us to see what nations are the greatest, so that we could be like them; … and we said, `What is it that makes the United States such a great nation?’ and we investigated and we found it was patents, and we will have patents.” The first national patent statute in Japan was passed in 1888, and copied many features of the U.S. system, including the examination procedures.
However, even in the first statute, differences existed that reflected Japanese priorities and the “wise eclecticism of Japanese legislators.” For instance, patents were not granted to foreigners, protection could not be obtained for fashion, food products, or medicines, patents that were not worked within three years could be revoked, and severe remedies were imposed for infringement, including penal servitude. After Japan became a signatory of the Paris Convention a new law was passed in 1899, which amended existing legislation to accord with the agreements of the Convention, and extended protection to foreigners. The influence of the German laws were evident in subsequent reforms in 1909 (petty or utility patents were protected) and 1921 (protection was removed from chemical products, work for hire doctrines were adopted, and an opposition procedure was introduced). The Act of 1921 also permitted the state to revoke a patent grant on payment of appropriate compensation if it was deemed in the public interest. Medicines, food and chemical products could not be patented, but protection could be obtained for processes relating to their manufacture.
The modern Japanese patent system is an interesting amalgam of features drawn from the major patent institutions in the world. Patent applications are filed, and the applicants then have seven years within which they can request an examination. Before 1996 examined patents were published prior to the actual grant, and could be opposed before the final grant; but at present, opposition can only occur in the first six months after the initial grant. Patents are also given for utility models or incremental inventions which are required to satisfy a lower standard of novelty and nonobviousness and can be more quickly commercialized. It has been claimed that the Japanese system favors the filing of a plethora of narrowly defined claims for utility models that build on the more substantive contributions of patent grants, leading to the prospect of an anti-commons through “patent flooding.” Others argue that utility models aid diffusion and innovation in the early stages of the patent term, and that the pre-grant publication of patent specifications also promotes diffusion.
Harmonization of International Patent Laws
Today very few developed countries would seriously consider eliminating statutory protection for intellectual property, but in the second half of the nineteenth century the “patent controversy” pitted advocates of patent rights against an effective abolitionist movement. For a short period the latter group was strong enough to obtain support in favor of dismantling the patent systems in countries such as England, and in 1863 the Congress of German Economists declared “patents of invention are injurious to common welfare.” The movement achieved its greatest victory in Holland, which repealed its patent legislation in 1869. The abolitionists based their arguments on the benefits of free trade and competition and viewed patents as part of a protectionist strategy analogous to tariffs. Instead of monopoly awards to inventors, their efforts could be rewarded by alternative policies, such as stipends from the government, payments from private industry or associations formed for that purpose, or simply through the lead time that the first inventor acquired over competitors by virtue of his prior knowledge.
The decisive victory of the patent proponents shifted the focus of interest to the other extreme, and led to efforts to attain uniformity in intellectual property rights regimes across countries. Part of the impetus for change occurred because the costs of discordant national rules became more burdensome as the volume of international trade in industrial products grew over time. Americans were also concerned about the lack of protection accorded to their exhibits in the increasingly more prominent World’s Fairs. Indeed, the first international patent convention was held in Austria in 1873, at the suggestion of U.S. policy makers, who wanted to be certain that their inventors would be adequately protected at the International Exposition in Vienna that year. It also yielded an opportunity to protest the provisions in Austrian law which discriminated against foreigners, including a requirement that patents had to be worked within one year or risk invalidation. The Vienna Convention adopted several resolutions, including a recommendation that the United States opposed, in favor of compulsory licenses if they were deemed in the public interest. However, the convention followed U.S. lead and did not approve compulsory working requirements.
International conventions proliferated in subsequent years, and their tenor tended to reflect the opinions of the conveners. Their objective was not to reach compromise solutions that would reflect the needs and wishes of all participants, but rather to promote preconceived ideas. The overarching goal was to pursue uniform international patent laws, although there was little agreement about the finer points of these laws. It became clear that the goal of complete uniformity was not practicable, given the different objectives, ideologies and economic circumstances of participants. Nevertheless, in 1884 the International Union for the Protection of Industrial Property was signed by Belgium, Portugal, France, Guatemala, Italy, the Netherlands, San Salvador, Serbia, Spain and Switzerland. The United States became a member in 1887, and a significant number of developing countries followed suit, including Brazil, Bulgaria, Cuba, the Dominican Republic, Ceylon, Mexico, Trinidad and Tobago and Indonesia, among others.
The United States was the most prolific patenting nation in the world, many of the major American enterprises owed their success to patents and were expanding into international markets, and the U.S. patent system was recognized as the most successful. It is therefore not surprising that patent harmonization implied convergence towards the American model despite resistance from other nations. Countries such as Germany were initially averse to extending equal protection to foreigners because they feared that their domestic industry would be overwhelmed by American patents. Ironically, because its patent laws were the most liberal towards patentees, the United States found itself with weaker bargaining abilities than nations who could make concessions by changing their provisions. The U.S. pressed for the adoption of reciprocity (which would ensure that American patentees were treated as favorably abroad as in the United States) but this principle was rejected in favor of “national treatment” (American patentees were to be granted the same rights as nationals of the foreign country). This likely influenced the U.S. tendency to use bilateral trade sanctions rather than multilateral conventions to obtain reforms in international patent policies.
It was commonplace in the nineteenth century to rationalize and advocate close links between trade policies, protection, and international laws regarding intellectual property. These links were evident at the most general philosophical level, and at the most specific, especially in terms of compulsory working requirements and provisions to allow imports by the patentee. For instance, the 1880 Paris Convention considered the question of imports of the patented product by the patentee. According to the laws of France, Mexico and Tunisia, such importation would result in the repeal of the patent grant. The Convention inserted an article that explicitly ruled out forfeiture of the patent under these circumstances, which led some French commentators to argue that “the laws on industrial property… will be truly disastrous if they do not have a counterweight in tariff legislation.” The movement to create an international patent system elucidated the fact that intellectual property laws do not exist in a vacuum, but are part of a bundle of rights that are affected by other laws and policies.
Appropriate institutions to promote creations in the material and intellectual sphere are especially critical because ideas and information are public goods that are characterized by nonrivalry and nonexclusion. Once the initial costs are incurred, ideas can be reproduced at zero marginal cost and it may be difficult to exclude others from their use. Thus, in a competitive market, public goods may suffer from underprovision or may never be created because of a lack of incentive on the part of the original provider who bears the initial costs but may not be able to appropriate the benefits. Market failure can be ameliorated in several ways, for instance through government provision, rewards or subsidies to original creators, private patronage, and through the creation of intellectual property rights.
Patents allow the initial producers a limited period during which they are able to benefit from a right of exclusion. If creativity is a function of expected profits, these grants to inventors have the potential to increase social production possibilities at lower cost. Disclosure requirements promote diffusion, and the expiration of the temporary monopoly right ultimately adds to the public domain. Overall welfare is enhanced if the social benefits of diffusion outweigh the deadweight and social costs of temporary exclusion. This period of exclusion may be costly for society, especially if future improvements are deterred, and if rent-seeking such as redistributive litigation results in wasted resources. Much attention has also been accorded to theoretical features of the optimal system, including the breadth, longevity, and height of patent and copyright grants.
However, strongly enforced rights do not always benefit the producers and owners of intellectual property rights, especially if there is a prospect of cumulative invention where follow-on inventors build on the first discovery. Thus, more nuanced models are ambivalent about the net welfare benefits of strong exclusive rights to inventions. Indeed, network models imply that the social welfare of even producers may increase from weak enforcement if more extensive use of the product increases the value to all users. Under these circumstances, the patent owner may benefit from the positive externalities created by piracy. In the absence of royalties, producers may appropriate returns through ancillary means, such as the sale of complementary items or improved reputation. In a variant of the durable-goods monopoly problem, it has been shown that piracy can theoretically increase the demand for products by ensuring that producers can credibly commit to uniform prices over time. Also in this vein, price and/or quality discrimination of non-private goods across pirates and legitimate users can result in net welfare benefits for society and for the individual firm. If the cost of imitation increases with quality, infringement can also benefit society if it causes firms to adopt a strategy of producing higher quality commodities.
Economic theorists who are troubled by the imperfections of intellectual property grants have proposed alternative mechanisms that lead to more satisfactory mathematical solutions. Theoretical analyses have advanced our understanding in this area, but such models by their nature cannot capture many complexities. They tend to overlook such factors as the potential for greater corruption or arbitrariness in the administration of alternatives to patents. Similarly, they fail to appreciate the role of private property rights in conveying information and facilitating markets, and their value in reducing risk and uncertainty for independent inventors with few private resources. The analysis becomes even less satisfactory when producers belong to different countries than consumers. Thus, despite the flurry of academic research on the economics of intellectual property, we have not progressed far beyond Fritz Machlup’s declaration that our state of knowledge does not allow to us to either recommend the introduction or the removal of such systems. Existing studies leave a wide area of ambiguity about the causes and consequences of institutional structures in general, and their evolution across time and region.
In the realm of intellectual property, questions from four centuries ago are still current, ranging from its philosophical underpinnings, to whether patents and copyrights constitute optimal policies towards intellectual inventions, to the growing concerns of international political economy. A number of scholars are so impressed with technological advances in the twenty-first century that they argue we have reached a critical juncture where we need completely new institutions. Throughout their history, patent and copyright regimes have confronted and accommodated technological innovations that were no less significant and contentious for their time. An economist from the nineteenth century would have been equally familiar with considerations about whether uniformity in intellectual property rights across countries harmed or benefited global welfare, and whether piracy might be to the advantage of developing countries. Similarly, the link between trade and intellectual property rights that informs the TRIPS (trade-related aspects of intellectual property rights) agreement was quite standard two centuries ago.
Today the majority of patents are filed in developed countries by the residents of developed countries, most notably those of Japan and the United States. The developing countries of the twenty-first century are under significant political pressure to adopt stronger patent laws and enforcement, even though few patents are filed by residents of the developing countries. Critics of intellectual property rights point to costs, such as monopoly rents and higher barriers to entry, administrative costs, outflows of royalty payments to foreign entities, and a lack of indigenous innovation. Other studies, however, have more optimistic findings regarding the role of patents in economic and social development. They suggest that stronger protection can encourage more foreign direct investment, greater access to technology, and increased benefits from trade openness. Moreover, both economic history and modern empirical research indicate that stronger patent rights and more effective markets in invention can, by encouraging and enabling the inventiveness of ordinary citizens of developing countries, help to increase social and economic welfare.
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Citation: Khan, B. “An Economic History of Patent Institutions”. EH.Net Encyclopedia, edited by Robert Whaples. March 16, 2008. URL http://eh.net/encyclopedia/an-economic-history-of-patent-institutions/