The Origins of the US Patent Office

by Bose. So come by on Friday this Friday at six pm to the free House of Music outside T Mobile Arena. I'll see you there and you'll be able to hear the episode I record at the House of Music at the iHeart podcast Studio powered by Bose on Monday. That episode should come out Monday and will be about something really pertinent. Anyway. The House of Music, in case you're curious, it's this big interactive exhibit where you can

experience immersive mixed reality. These experiences linked to the various artists who are performing at this year's festival, and there's a let me tell you, a wide spectrum of experiences like something for everybody. There's a room that's dedicated to Public Enemy, There's another one dedicated to Fallout Boy, There's one dedicated to Kelly Clarkson. Like I said, it's a pretty wide range of experiences, and they're more. Besides that, those are just three of the ones that will be

part of this House of Music experience. Now, as part of that, we have, like I said, this Bose powered podcast studio. And I know what you're thinking, Yes, this whole thing is way cooler than I am, but they still asked me to come, so I'm gonna go there. I hope to see some of y'all there. All right, now let's get to the episodes. So, since I am going to be traveling out to Las Vegas this week and it's going to really disrupt my normal recording schedule, I decided to get a jump on things and I

wrote out a two part episode for y'all. So Part one is today, Part two will be tomorrow. Then on Friday, I'll be recording live in Vegas, and then next week should be I guess, kind of normal. I'm actually still going to be in Vegas for a separate thing with Mobile World Congress, but we'll see how normal I can make it. I'm bringing my recording equipment with me. I'll just be recording, probably in my hotel room, but someplace that's relatively quiet, is my hope. Okay, now, I have

done a few episodes about patents on this show. Today, I thought I would talk about the history of the patent office here in the United States and also talk about how one massive fire prompted changes that meant a second, technically more costly fire was ultimately far less destructive. But that's definitely getting ahead of myself, because I won't even be touching the fires at all, because fire is hot,

but I won't be talking about them until tomorrow. However, first, before we get into any history stuff, let's go over why patents exist in the first place. So the purpose of a patent is to grant limited but exclusive rights

to an inventor of their invention. And when I say inventor, I don't always mean inventor, I mean patent holder, because the entity that holds a patent might not have been actually responsible for the invention, but through whatever arrangement between inventor and entity there is, it means that the entity holds that patent and they have this limited but exclusive

set of rights. So the concept here is that the inventor comes up with either a significant improvement over an existing thing, or they come up with something that is totally new altogether. The inventor then details what this invention does and how it works in a document in a set of specifications, ideally so that a person who was reading it would have a reasonable idea of how it functions and potentially could even follow steps to create a

version of their own in the future. So the patent means that the patent holder can choose what to do with that invention, and no one else has that right, at least for as long as the patent is valid. Patents do eventually expire, so that's why I say there's a limited exclusive rights granted to the patent holder, because

eventually they do expire. The patent holder can choose to make their own invention themselves, so they could start reducing whatever it was they invented, and they could also pursue legal action against anyone who copies them. They could argue for patent infringement. So if someone were to try and make their own version and it appeared to be based off the same functions and operations that were covered by the patent. The patent holder could say, I hold the

exclusive patent for this. I didn't give you permission to use this invention. You owe me money. And assuming that the argument is a sound one, and the court finds that yes, the copy or whatever was in fact based upon the exact same principles as the patented invention, then the court is more likely to side with the plaintiff in that case. So the inventor or patent holder could also license their invention to other entities, like a manufacturing company.

So in this case, the company or whatever pays a license fee to the patent holder, and then that company starts to make the thing and sells it themselves, and the patent holder just sits back and collects licensing fees and doesn't have to actually pour the capital into making the thing themselves. If the patent holder is a real jerk, they can get a patent on something and then just

sit on it and just wait to see. If anyone ever makes anything that could be said to infringe upon their patents, then the patent holder could sue or threaten to sue that other person or entity and look for like a really big settlement or court decision. This kind of patent holder is what we call a patent troll. Patent trolls don't make anything. They typically don't license their

patents either, so they just sit on them. They patent something and they wait and then they pounce if they see anyone that makes something that they could argue was predicated upon their patents. It's pretty awful, and obviously it's a way of behaving that's antithetical to the purpose of a patent. Patents weren't made so that you could set a trap and wait and then pounce on someone when they appear to trip the trap. They were made to

encourage innovation and invention. Now, because patents are available for public review, you can go and look at all these patents that are filed to this day. You can search various databases for all the patents that have been filed that still exist. We'll talk more about that in tomorrow's episode. But this also means that the inventor or patent holder

can't keep their invention to themselves forever. Ideally, someone with the materials and skill would be able to take those specifications that were laid out in a patent along with whatever sketches might be included and build their own version of that invention. They can't do that without the inventor's permission until the patent expires, but at that point it enters public domain and it's fair gain. So the thinking behind this is that really useful inventions shouldn't be locked

away from the public in perpetuity. They should be available for people to make use of beyond a certain span of years. So a patent is meant to grant a reasonable amount of time to the patent holder in order for them to make money off of their invention. Chances are, by the time the patent expires, advancements will mean that

the original invention isn't necessarily relevant anymore anyway. But with the patent going into the public domain, people are free to build upon that design and to improve upon it and to evolve it. So a patent is a balance between providing for the benefit of the inventor or patent holder and ensuring the public good in the long term. Now, there are criteria that an invention has to meet in order to be patentable. For one thing, it needs to have a useful purpose, so that could be a fairly

subjective criterion. It needs to be new. If there are already versions of this invention out there in the world, well then it's not eligible for a patent. We've seen this recently with lots of things where where people have argued, hey, there were already versions of that technology that existed prior to your patent application, so you shouldn't be able to receive a patent for that because it's not new. Something

else already exists that does the thing you're doing. It's also supposed to be non obvious, so that means it needs to be inventive. It needs to be something that not just anybody would say, oh this is bad design. Let's just change this one thing and now it works better. So it can't be an obvious improvement. It has to be something that was special. If the average person could have invented it, then it doesn't qualify for a patent. It also has to cover patentable subject matter, and this

gets a little more complicated. So, for example, you couldn't patent something that occurs in nature like a flower, assuming of course that the flower already exists in nature, and that makes sense. Now the flower is not of human design. It's not a flower that's of human origin. But if you were able to create, say a new kind of flower, and it reproduces asexually and it's not found in nature, that is something that is patentable. You can also patent

a process. In fact, you can patent really kind of abstract processes if they have like a concrete outcome. So if you came up with a new way to conduct business, you could conceivably file and receive a patent for that. And you can patent formula for stuff like drugs or other chemicals. Those kind of things can be patented, but mathematical formula cannot be patented. Neither can scientific principles. Those

cannot be patented. That mathematics bit ended up being a real hang up when people started writing software because they wanted to patent their software. But there were a lot of debates over whether a program would be patentable because when you really get down to brass tacks, programs are just a set of mathematical operations, and mathematical operations and

formulas are not patentable. Back in the nineteen sixties and nineteen seventies, the Patent and Trademark Office was reluctant to issue a patent for any invention that included calculations made by a computer. The Supreme Court in the United States backed up the Patent Office in a couple of major decisions during those decades. Things started to change a little bit. In the nineteen eighties, however, the Supreme Court ruled that one process that did include software was in fact patentable.

But this was a process that had a lot of different elements in it. If you're curious, it was really about heating rubber to the proper temperature in order to cure the rubber, and software was one part of it, but not the only part. So this wasn't exactly a clear cut case saying yes, software is patentable. It was more like the software was part of a larger process and the overall process was patentable. Today, obtaining a patent on software is still a little dodgy, and it can

really gum up the court systems in the US. But that's a matter for another episode. So let's talk about some other stuff that you cannot patent. You can't patent surgical procedures. You can't patent a dance or an exercise,

though you could patent exercise equipment or dance equipment. You can't patent an invention that violates the laws of physics, so that means stuff like perpetual motion machines are not eligible for patents, even though that hasn't always stopped inventors from trying to patent it, and it hasn't always stopped the Patent Office from making a whoopsie, at least in the short term. Well, we're going to talk more about the actual history of patents in just a moment, but

first let's take a quick break to thank our sponsors. Okay,

we're back. So the history of patents in the United States involves one of the founding fathers of the country, one of our early presidents, in fact, Thomas Jefferson, so old Tommy Boy, spent a great deal of time in Europe securing support as the colonies that would become the United States were attempting to establish a new nation, and one of the many things he picked up well over in Europe was this concept of patents, and he felt that the United States would need its own way to

protect ideas and inventions and innovation and experimentation. So he thought, this is something we need to establish in our new country. So in seventeen ninety, as Secretary of State, Thomas Jefferson supported a bill that would establish that the Secretary of State, the Secretary of War, and the Attorney General would serve as a tribunal and they would have the power to grant or deny patents. Even in the earliest version of this law, the government required that inventions pass a standard

of being quote sufficiently useful and important end quote. If your invention didn't measure up to that standard, you were not going to get a patent for it. In fact, the tribunal was so strict that for the first year that patent law was even a thing in the United States, they granted only three patents. The very first one was for a process of making potash, which is used in fertilizer.

George Washington gave that patent his John Hancock, which just wanted to say, because I'm lame and I think I'm funny. At this time, there was no numbering system for patents. So while Georgie Boyce signed the first patent into the US, that's not to say that podash patent was patent number one, because we didn't start numbering patents for like four more decades, and I imagine the filing system back in those days

was a nightmare. In fact, I know it was because some of the leaders of the Patent Office went bonkers trying to fix it. Now, the original term of protection for a patent was fourteen years, and after fourteen years, the patent design would go into the public domain and anyone would be able to make use of that invention

without committing patent infringement. This clause kept inventors from being able to hoard their own work, which Jefferson and others saw as a way of protecting the public so that the most people could benefit from inventions while the inventor would still enjoy a fairly long span of time as the exclusive rights holder, thought, being like, oh, yeah, you're going to be able to get rich in fourteen years, and after that then you know you had your time,

and that invention needs to be sort of freed up so that more people can take advantage of it. The early version of this law also laid out that patent applications should include detailed drawings and, if possible, a model to demonstrate the working components. The model part would be really important for nearly a century, and this would help determine if the invention described was even possible, if it would even work, and to understand the underlying working elements

of that invention. If your model was such that you could not see how this invention could possibly work when built at scale, that was a bad sign. So the model needed to be able to convey, yes, this is an idea that will work in the real world. One of the big issues with these models is that they took up a lot of space, right like, you had to find a place to put them and store them and preserve them, and that would become a huge challenge

later on as more patent applications would pour in. Now, if you were an inventor, you could choose not to pursue a patent at all if you wanted to. You could just try and keep your design a secret. You could choose to not share drawings or models your invention, and maybe you make the thing and sell the thing, and you never bother to explain how the thing works

to anyone else. So you might want to do that rather than describe and detail how your invention works, because that way you would be the one making all the decisions about your invention forever, or at least for as long as you're alive. However, if someone else were able to figure out how your invention works, then they could go and make their own version without going through you. And if you don't have a patent protecting your invention,

you don't really have a lot of recourse. If your competitor is better at marketing and selling your invention than you are, you could find yourself at a major disadvantage. So while filing a patent requires you to explain how the heck your thing works, the protections you get from a patent can outweigh any concern about giving up your secrets, unless it's a trade secret you really want to protected. So yeah, that's another alternative to getting a patent, just

not necessarily a wise one, depending upon what your invention is. Anyway, back to the history of patents in the US, so early inventors were starting to complain about the patent system that Jefferson had kind of overseen, and there's not really a big surprise there. When you have only three patent applications that make it all the way through to become patents in a full year, you might start to say

the system is not working as intended. So some inventors complained that the people who are occupying the positions that were responsible for reviewing the patents were inherently biased against the industrial class, and there may have been some truth to that. The political leadership of the US largely came from more aristocratic lines, sometimes agrarian ones, Thomas Jefferson, for example. So we got a couple of revisions to pass law in the following years that changed things around in a

major way. So in seventeen ninety three, just three years in to this grand experiment of four technically if you count like seventeen ninety one, ninety two and then ninety three, a big change happened. And that change was that it removed the tribunal's right to review applications and then reject them on the basis of lack of merit, so kind of like a drastic opposite of how things had been

going up to that point. So essentially, the thought was that the Patent office should just grant patents regardless of whether the application demonstrated a useful or new invention or not. If they pays their money, they gets their patents. That was the thinking that would mean that the US court system would be responsible for hashing out all the different

legal cases that involve problems with this approach. Remember, if if you're not able to review an reject a patent application, and someone patents an invention and then someone else tries

to patent the same invention, you can't reject it. That means you grant a patent for both inventions, even though one clearly predated another, which kind of brings the whole question about who has those patent rights under fire right, And these are things that would end up going to courts, and then the courts would have to decide all this. So it was kind of passing the buck of this

responsibility off to the court system. Not that the tribunal necessarily wanted this, but this is how the law was changed.

So if you filed a patent for something simple that had already been around for ages, like you didn't actually invent something you just decided to file a patent for, like I don't know, a shovel, then technically, if you paid your application fee, then you would get your patent approved and you could theoretically use your patent to go after anyone who made a shovel that didn't pay you.

Chances are that wouldn't really go very far in court, Like it wouldn't be a successful kind of tactic, but it would take up a lot of time, It would waste time, and it would be a real nuisance. And so yeah, this was a big change. Now, another set of revisions stated that only a US citizen would be able to receive a US patent. That rule would also

evolve over time. You would have exceptions or some language that would change this a bit, like if someone had been in the country for at least two years and expressed a desire to become a US citizen, then they would be eligible for a patent. Then you know, this would change again. So this was an evolving concept. But there was a time where if you wanted to get a US patent you had to be a US citizen. Interesting because again, the United States had not existed for

very long at all at this point. From seventeen ninety to eighteen oh two, there was a solitary clerk in the state department who oversaw operations because rapidly this whole tribunal approach essentially said, let's just make one person in charge of this and not have to take up department time with the leaders of three different departments coming together to make these decisions. So it became a clerk in the State Department who had to do it, and that

was rough. So once you get to eighteen oh two, Jefferson then appoints a physician named doctor William Thornton as the Superintendent of the Patent Office, a position he would hold for twenty six years, and to this day, doctor Thornton stands out as the person who served as leader of the Patent Office for the longest tenure. Doctor Thornton was a highly educated man. He was born in the British Virgin Islands in seventeen fifty nine. He was sent

to attend school in England. He ended up attending the University of Aberdeen and earned a medical degree. And interestingly, when he returned to the United States, he participated in a little competition. There was a competition to submit designs for what the US Capitol building should look like, so he created one and he won the competition. He would actually go on to design other buildings that would become famous landmarks in Washington, d C. Not all of which

would survive. Due to something that's going to happen in just a few years. But yeah, he did this without any formal training in architecture. He was just really interested in it and submitted his designs and won. Anyway, he assumed the role of Patent Office Superintendent on June first, eighteen oh two, becoming the first superintendent of the United States Patent Office. Now, originally the title was more or less informal. There was like no official law that really

established the office. In fact, he wasn't allowed to hire an assistant until eighteen ten, which meant he had to oversee all the work of the office personally. It was an office consisting of one person, and that was the superintendent. I think that's hilarious that you could be a superintendent and have no one to superintend I guess. Anyway, that year eighteen ten would also see the US government purchase

a building that was called Blodgett's Hotel. So it was a building that was meant to be, you know, the sort of luxurious hotel. But from what I understand, apparently the money to build the hotel kind of ran out mid construction or toward the end of construction, and so it was not quite finished. So US Congress purchased this building and chose it to serve as the headquarters for both the United States Post Office and the Patent Office. That Post Office bit would later end up being very

bad news, as it turns out. But again that's getting ahead of things. All right, let's take another quick break. When we come back, we'll close out this part one episode about the history of patent law and the Patent Office in the United States. Okay, we're back now. We left off in eighteen ten with the Blodget Hotel becoming the new home for the Post Office and the Patent Office, and doctor Thornton is well into his tenure as superintendent of the Patent Office. This would be the year when

he would finally be able to hire an assistant. Well two years after that war broke out. Now fittingly, it was the War of eighteen twelve, so at least everything lined up so that the war was on time. However, that war actually lasted till eighteen fifteen, so it kind

of overstated. It's welcome anyway. This war was primarily between America and the British, frequently fought through native proxies, like there were Native Americans who were fighting on behalf of America on one side and fighting on behalf of Britain on the other side. Now, to go into all the reasons about why there was a war in the first place is beyond the scope of this podcast. And besides, there's actually a lot of historical debate over what the

heck really precipitated this war. I mean, there are a lot of different factors, and people argue over which ones were the most important. But for our episode, the important bit is that the patent office was in Washington, d C. And in eighteen fourteen, British forces captured Washington, d C. And all the government buildings were potentially in danger because they were important, and they were big, and they were

great targets for setting stuff on fire. So the story goes that doctor Thornton prevailed upon the British to spare Blodget Hotel, arguing that the patents and the models within the hotel were for inventions that could benefit people all around the world, not just in the United States, and that if the British were to burn them all and destroy them, it would be inflicting severe self harm down

the line, and that plea appeared to work. The British did not burn down the Blodget Hotel the way that they did with many other buildings, including the US Capital, which, if you recall, was based off of doctor Thornton's own design. In fact, Congress itself would have to temporarily move into the Blodget Hotel in eighteen fifteen as a result of having nowhere else to meet because the US Capitol was so badly damaged by fire and had to undergo extensive repairs.

And just to be historically fair, while you know, you could say, wow, the British came in and started burning all these important buildings, isn't that terrible? We have to also keep in mind that the Americans had captured and raided and burned British held properties in Canada leading up to this, so neither side was innocent of this kind of behavior. They both had been perpetuating the sort of warfare against one another. So I don't want to just be unfair to the Brits. The Americans also got a

little happy with the matchsticks. Doctor Thornton got into some fairly significant disputes during his time as Superintendent. For one thing, a major thing, he disagreed with the seventeen ninety three revisions to patent law that said he was not supposed to reject patents that failed to describe something that was new or useful. He thought, that is dumb. It's just ludicrous to give a blanket approval to any patent that happens to pay the application fee. So he largely ignored

that rule. He just said, you know what, no, I'm gonna tell inventors that I'm not going to approve a patent if the invention they described isn't new or useful. So he became kind of the sole arbiter to decide if a patent was worthy or not. He also occasionally would list himself as an inventor or a co inventor on patents. I don't know to what extent he actually contributed to the invention. Maybe this was because he would sometimes work with applicants in order to get their patents

in shape so that they could be approved. I don't know the answer to that, but it did bring into question his ethics, like is he just listing himself so that he can enjoy some of the reward of this invention going into production. He was involved in a fracaw or fracas. If you're down here in the South with

Robert Fulton that was the inventor of the steamboat. Fulton was finding it very frustrating to work with the Patent Office, and this might be because that doctor Thornton was also close friends with a guy named John Fitch, who was a contemporary and competitor to mister Fulton, which just goes to show that conflicts of interest have always been a thing. Now, Doctor Thornton served as Superintendent of the Patent Office until eighteen twenty eight, and he stopped then, like he totally stopped,

because you know, he died. The next person to hold the office would be Thomas P. Jones, another scientist and physician, and that came as quite a shock to a guy named William Elliot. William Elliott had been doctor Thornton's chief clerk, sort of his right hand man, and Elliott had assumed that he would be promoted to superintendent upon doctor Thornton's passing, but that did not happen, and so the seeds were sown for some major drama in the US Patent Office.

But with that bit of foreshadowing, we're going to bring this episode to an end and we will pick up here tomorrow with tomorrow's episode. Just a reminder, as I said, on Friday, I will be in Las Vegas at the iHeart House of Music, which is free. It's outside the T Mobile Arena. It's part of the festival, but it's a free part of the festival, So if you want to swing by and say hi on Friday, I'll be out there. I'll be the bald guy getting ready to

podcast at six pm. I hope to see you there, and I hope you're all well, and I'll talk to you again really soon. Tech Stuff is an iHeartRadio production. For more podcasts from iHeartRadio, visit the iHeartRadio app, Apple Podcasts, or wherever you listen to your favorite shows.