Piracy : The Intellectual Property Wars from Gutenberg to Gates by Adrian Johns

Author:Adrian Johns [Johns, Adrian]
Language: eng
Format: epub
Tags: Nonfiction
Publisher: http://c3jemx2ube5v5zpg.onion
Published: 2010-12-02T16:00:00+00:00

from reform to abolition

Agitation to reform the operation of patenting can be traced back a long way. As early as the 1780s, in the midst of fears aroused by Pitt’s proposed free trade arrangement with Ireland, James Watt and his friends had banded together to urge major changes. Among the themes Watt articulated were a number that became key to the subsequent century’s debate. Should patents be admissible for merely introducing a device from abroad, for example? Watt thought so, and this practice had in fact long been accepted, but increasingly others rejected it. Should one be able to patent a principle as well as a device? Again, Watt thought one should, but his was not a majority view; and in any case the concept of a “principle” was anything but evident. Most important, should some tribunal be created that would vet an application for novelty before a patent could be granted at all?

This idea of a patent tribunal encompassed many of the trickiest problems with a patents regime. Since the 1730s, applicants had had to submit “specifications” of their inventions. The idea that a patent represented a bargain between society and the inventor – a temporary monopoly in return for revealing the invention – rested on this requirement. But patent specifications often concealed as much as they conveyed. This was not necessarily the result of incompetence or inexperience. Rather the reverse: there was a distinct art to composing a patent specification so as to reveal just enough to sustain the claim and identify the invention, but not so much as to make the claim overly specific or to enable others to replicate it. This finely calculated ambiguity frequently caused problems for patentees in the face of later challenges. Watt himself had fallen foul of it. A tribunal, he suggested, might ensure that a specification was indeed an adequate description of the invention. It might also go further, and judge the novelty of a claim, thereby reducing litigation. But Watt preferred that any such opinion should be merely advisory. And he rejected altogether the suggestion that it should rule on the utility of an invention.

Proposals for some kind of tribunal proved tenacious. They were repeatedly resurrected in the nineteenth century, and their potential scope did not end with the application process. Perhaps a tribunal could also replace the conventional law courts in hearing challenges to existing patents too – a possibility that Brewster, for one, favored strongly. Only this, advocates claimed, could end the lottery of patent litigation. They proposed that a special court be convened solely to decide patent challenges (and perhaps those relating to copyright too). Such a court too was not in fact instituted, but the idea that it could be returned time and time again. But any such plan immediately posed the problem of who should sit on such a body. Judges and advisors would need to be at once impartial, objective, technically expert, and practical. Watt suggested a panel of three Fellows of the Royal Society and two artisans.

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