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"The U.S. and China don't see eye to
eye on much nowadays, but in a rare show of consensus, the two countries both
support a waiver of patent rights for Covid-19 vaccines. If that happens, it
would be the latest bump in a long, rocky road for intellectual property rights.
There was no such thing as patent
law in the ancient world. Indeed, until the invention of gunpowder, the true
cost of failing to protect new ideas was never even considered. In the mid-11th
century, the Chinese Song government realized too late that it had allowed the
secret of gunpowder to escape. It tried to limit the damage by banning the sale
of saltpeter to foreigners. But merchants found ways to smuggle it out, and by
1280 Western inventors were creating their own recipes for gunpowder.
Medieval Europeans understood that
knowledge and expertise were valuable, but government attempts at control were
crude in the extreme. The Italian Republic of Lucca protected its silk trade
technology by prohibiting skilled workers from emigrating; Genoa offered bounties
for fugitive artisans. Craft guilds were meant to protect against intellectual
expropriation, but all too often they simply stifled innovation.
The architect Filippo Brunelleschi,
designer of the famous dome of Florence's Santa Maria del Fiore, was the first
to rebel against the power of the guilds. In 1421 he demanded that the city
grant him the exclusive right to build a new type of river boat. His deal with
Florence is regarded as the first legal patent. Unfortunately, the boat sank on
its first voyage, but other cities took note of Brunelleschi's bold new
business approach.
In 1474 the Venetians invited
individuals "capable of devising and inventing all kinds of ingenious
contrivances" to establish their workshops in Venice. In return for
settling in the city, the Republic offered them the sole right to manufacture
their inventions for 10 years. Countries that imitated Venice's approach reaped
great financial rewards. England's Queen Elizabeth I granted over 50 individual
patents, often with the proviso that the patent holder train English craftsmen
to carry on the trade.
Taking their cue from British
precedent, the framers of the U.S. Constitution gave Congress the power to
legislate on intellectual property rights. Congress duly passed a patent law in
1790 but failed to address the legal position of enslaved inventors. Their
anomalous position came to a head in 1857 after a Southern slave owner named
Oscar Stuart tried to patent a new plow invented by his slave Ned. The request
was denied on the grounds that the inventor was a slave and therefore not a
citizen, and while the owner was a citizen, he wasn't the inventor.
After the Civil War, the opening up
of patent rights enabled African-American inventors to bypass racial barriers
and amass significant fortunes. Elijah McCoy (1844-1929) transformed American
rail travel with his engine lubrication system.
McCoy ultimately registered 57 U.S.
patents, significantly more than Alexander Graham Bell's 18, though far fewer
than Thomas Edison's 1,093. The American appetite for registering inventions
remains unbounded. Last fiscal year alone, the U.S. Patent and Trademark Office
issued 399,055 patents.
Is there anything that can't be
patented? The answer is yes. In 1999 Smuckers attempted to patent its crustless
peanut butter and jelly sandwich with crimped edges. Eight years and a billion
homemade PB&J sandwiches later, a federal appeals court ruled there was
nothing "novel" about foregoing the crusts." [1]
- REVIEW
--- Historically Speaking: The Long Road To Protecting Inventions. Foreman,
Amanda. Wall Street Journal, Eastern edition; New York, N.Y. [New York,
N.Y]22 May 2021: C.5.