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Nineteenth Century Criticism of the Patent System

Adapted from the notes for “Fritz Machlup, The Patent Controversy in the Nineteenth Century (1850–73),” chap. 7 of Kinsella, ed., The Anti-IP Reader: Free Market Critiques of Intellectual Property (Papinian Press, 2023).

This is a section from Machlup’s 1958 study prepared for Congress, An Economic Review of the Patent System, which summarizes a more in-depth 1950 work with Edith Penrose, which is unfortunately not online.1 As Machlup’s report explains, the ability of the English crown to grant protectionist monopoly privileges, in the form of patents, was reined in by Parliament in the Statute of Monopolies of 1623, but the act still allowed the crown to grant patents for inventions. Later, more general patent laws were enacted, the first in South Carolina in 1691, and then in the US in 1790, shortly after the Constitution was ratified in 1789. Free market economists began to object to the patent system in the mid-1800s, leading some countries to repeal or delay adopting patent laws. The primary criticism was that protectionist patent grants are incompatible with free trade. However, the “Long Depression” starting in 1873 turned public opinion against free trade, leading the anti-patent movement to collapse and for modern patent systems to eventually become dominant world-wide.

As summarized in an article by Meiners and Staaf:

In the Nineteenth Century, the patent debate was characterized in terms of free trade versus protectionism, with ‘protectionists’ favoring monopoly grants to inventors, and the ‘free traders’ against grants. The free traders lost, but not without some battles. A bill to weaken patents passed the House of Lords in England in 1872. Holland abolished patents in 1869, but reinstated them in 1910. Switzerland, which held out against patents longer than any other European country, adopted patents in 1882. Although several portions of Germany did not adopt patents and Chancellor Bismarck announced his opposition to patents in 1868, uniform patents were adopted for the entire Reich in 1877.2

I have also come across two interesting volumes on the IP debates in the nineteenth century: Robert Andrew Macfie, ed., Recent Discussions on the Abolition of Patents for Inventions in the United Kingdom, France, Germany, and the Netherlands: Evidence, Speeches, and Papers in Its Favour: With Suggestions as to International Arrangements Regarding Inventions and Copyright  (London: Longmans, Green, Reader and Dwyer, 1869; free epub and pdf download and here), and the “sequel”: R.A. Macfie, ed., Copyright and Patents for Inventions: Pleas and Plans for Cheaper Books and Greater Industrial Freedom, with Due Regard to International Relations, The Claims of Talent, the Demands of Trade, and the Wants of the People, vol. II (Edinburgh: T. & T. Clark, 1883).

Mike Masnick has a good post about the 1869 book, which I paste below:

Discussions On The Abolition Of Patents In The UK, France, Germany And The Netherlands, From 1869

from the a-bit-of-history dept

In the past, I’ve talked about Eric Schiff’s book Industrialization Without National Patents, which takes a close look at how the Netherlands industrialized during a period of time when it explicitly abolished patents — from 1869 to 1912 — and Switzerland, during a time when the country’s patent system was effectively non-existent for most inventions — from 1850 until 1907. This academic study, which was published in 1971, does a really good job of digging into the data of what happened in two economies during a period of time when they didn’t have patents (spoilers: both did pretty well and actually became centers for certain industries). The Netherlands was perhaps the most interesting, seeing as it was the one country that explicitly chose to abolish its existing patent system in 1869.

Of course, it shouldn’t be a surprise to find out that such discussions didn’t just take place in the Netherlands, but elsewhere as well. Via Stephan Kinsella and David Koepsell comes the discovery of a book from 1869 concerning Recent Discussions on the Abolition of Patents for Inventions, and covering examples of such discussions in the UK, France, Germany and the Netherlands (for what it’s worth, Germany also had no patent system until 1877). The book’s subtitle also notes: “With suggestions as to international arrangements regarding inventions and copyright.”

The entire work has been helpfully scanned by Google, and since it’s well into the public domain, can be displayed in its entirety. In fact, the book (quite interestingly!) has a “no rights are reserved” notice in the beginning. So even if it had been published more recently, it would have been considered in the public domain. Nice to see that even back in 1869 authors were willing to support the public domain by choice.

What’s quite incredible as you read through the various letters, speeches and writings in the book is how many of them could fit into today’s debate. Right from the beginning, the points sound similar to what the debates today are about:

The fact is, no one, I presume wishes to say that an inventor is undeserving and should go unrewarded. All that the opponents of the Patent system do say is, that the present machinery gives minimum advantage to the inventor, and inflicts maximum disadvantage on the public. Besides, in ninety-nine cases out of a hundred, the patentee is only a simultaneous inventor with a number of others, who lose their labour and ingenuity because one man happens to get in first….

That sounds mighty familiar. Other pieces point out that patents are incompatible with free trade and, there are regular points about how independent or simultaneous invention is happening in most of these cases, rather than anyone “copying” ideas from one another. There’s also a discussion on how patents create fuzzy boundaries, which make it terrible if anyone is comparing it to any sort of actual “property right.”

The more you look, the more you’ll find lines that sound so familiar:

We acknowledge that the man who first constructed a hut was perfectly right in making good his claim against those who would have deprived him of it, and that he was justified in vindicating his claim by force. He had employed his time and strength in building this hut; it was undoubtedly his, and his neighbours acted up to their natural rights and in their own interests in helping him to oppose the intruder. But there ended both the right of the individual and that of the community.

If this first man, not content with claiming his hut had pretended that the idea of building it belonged exclusively to him, and that consequently no other human being had a right to build a similar one, the neighbours would have revolted against so monstrous a pretension, and never would have allowed so mischievous an extension of the right which he had in the produce of his labour….

And if, in our day, imitation of an invention is not generally considered as guilty an act as robbery of tangible property, it is because every one understands the difference between an idea and a thing made or done.

There are plenty more quotes. Take a look through the collection and enjoy — or be horrified that we’re still having these debates 150 years later, and the situation has become worse, not better.

  1. Fritz Machlup, U.S. Senate Subcommittee On Patents, Trademarks & Copyrights, An Economic Review of the Patent System (85th Cong., 2nd Session, 1958, Study No. 15), Part II.C. This section is entitled “The Rise of an antipatent movement (1850-1873),” summarizing Fritz Machlup & Edith Penrose, “The Patent Controversy in the Nineteenth Century,” J. Econ. History 10, no. 1 (May 1950): 1–29. []
  2. See also Roger E. Meiners & Robert J. Staaf, “Patents, Copyrights, and Trademarks: Property Or Monopoly,” Harv. J. L. & Pub. Pol’y 13, no. 3 (Summer 1990): 911–48, pp. 911–12. []
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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.