Robinson, The Law of Patents (1890): Patents vs. Natural Law

by Stephan Kinsella on October 23, 2024

William C. Robinson, The Law of Patents for Useful Inventions, vol. 1 (Boston: Little, Brown, and Co., 1890) (Amazon; google books; HathiTrust), §24 (first footnote omitted):

In pursuing this investigation the relations of an inventor and the public to an unpatented invention first demand attention. In its earliest stage this invention is a mere addition to the stock of ideas possessed by the inventor. He has imagined or discovered something which to himself, and presumably to all the world, is new, and has conceived a method by which his idea may be so applied as to produce a tangible and valuable result. In this stage he has a natural exclusive right to his invention. No one can compel him to disclose his secret. He may reduce it to actual practice, or preserve it as a matter of subjective contemplation. The law can take no other notice of it than it does of his moral sentiments or his personal recollections. If, however, he endeavors to avail himself of this idea in his exterior life, his position in regard to it is somewhat changed. The material forms in which he then empbodies it are his, but the idea itself is not to be imprisoned within their narrow bounds. Every one who examines and can understand them immediately conceives the same idea, whether he will or not, and thenceforward that idea remains as much a part of the observer’s fund of knowledge as it ever was of that of the inventor. In order, therefore, to retain exclusive ownership of his idea, he must withhold its material embodiment from observation; and as long as he can do this, the invention is as truly his by natural right as if it never had been thus externally expressed. But with his submission of the tangible result of his idea to the inspection of others, in such a manner that the idea itself become apparent, its control over it is gone. An idea once communicated can no longer be exclusively appropriated and enjoyed. Every one who receives it possesses it in the same degree as if he alone had apprehended it, and its inventor has no power to restrain him from its practical and useful application. Under the laws of nature the exclusive public use of an invention is thus impossible, and hence there is no natural right to such a use. The inventor, who voluntarily discloses his invention to the public, necessarily and freely dedicates it to the public; and that which formerly was his alone by virtue of his sole possession becomes by universal possession the common property of all mankind.²

2. Coryton:¹ (45) “So far as natural right is concerned, the application of a law of nature, a philosophical or abstract principle, is capable of exclusive appropriation only so long as the secret of such application is within the inventor’s breast. Once passed, it becomes the property of all mankind.”

Norman:² (2) “Independently of an express restriction by the sovereign authority in a state, there is no such thing as exclusive property in an invention. The subject-matters of human inquiry are free to all men. An addition once made to the stock of knowledge is common property forever, nor is it less the property of the discoverer because others possess it as well as himself. It is in its nature infinite and incapable of appropriation. The first builder of a house could claim as his own the substantial and tangible materials, the logs and wood of which he constructed it; but the idea of wuch an erection became instantly the property of all mankind. The abstract natural right of the inventor is only to exercise his own invention freely.”

In The Attorney-General ex rel. Hecker v. The Rumford Chemical Works (1876), 9 O.G. 1062, Shepley, J.: (1064) “So long as such writings and discoveries were not communicated to the public, authors and inventors had a possession of, which was equivalent to a property in, their writings and discoveries. When communicated to the public, by the common law that property was lost.”

This is so great. Yeah, the language is a bit too flowery and a few comments are somewhat imprecise, but it’s great. But no, it’s imprecise to say someone owns an idea; that can never be owned. It is never “property.”

On the “fund of experience,” see “Against Intellectual Property After Twenty Years: Looking Back and Looking Forward,” in Legal Foundations of a Free Society, n. 59; and Kinsella, “Hayek’s Views on Intellectual Property,” C4SIF Blog (Aug. 2, 2013) and “Intellectual Property and the Structure of Human Action,” Mises Economics Blog (Jan. 6, 2010), discussing Hayek’s comments about how the accumulation of a “fund of experience” helps aid human progress and the creation of wealth. See also Kinsella, “Tucker, ‘Knowledge Is as Valuable as Physical Capital,’” C4SIF Blog (March 27, 2017) and George Reisman, “Progress In a Free Economy,” The Freeman (July 1, 1980). See also Julio H. Cole, “Patents and Copyrights: Do the Benefits Exceed the Costs?”, J. Libertarian Stud. 15, no. 4 (Fall 2001): 79–105, p. 84 et seq., discussing the importance of technical progress (not to be confused with patents) to economic growth.