• Ms. Susan Finston, J.D., M.P.P.

The Birth of American Intellectual Property (IP)

Updated: Jul 10


In the run-up to America’s 246th birthday – and in the spirit of celebrating revolutionary ideas – let’s try to imagine the enormous challenges facing American revolutionaries following independence from Great Britain. While “Colonists enjoyed the full wealth and protection of the British government; after the American Revolution (1775 - 83), these former colonies became independent states in need of effective innovation systems.

As an initial matter each state administered its own innovation policy including patent systems, and weaknesses of patchwork Intellectual Property (IP) protection soon became apparent. Given the critical importance of encouraging innovation, the young nation established a national patent system and made US Cabinet level officials responsible for administration of the new federal patent system.


The US Constitution (Article I, §8, clause 8) signed in 1877 provided the foundation for national patent policy. The Act of April 10, 1790 then created the American patent system with the Cabinet-level Patent Board including then-Secretary of State Thomas Jefferson, then-Secretary of War Henry Knox, and then-Attorney General Edmund Randolph. The Department of State was charged with overall administration of the new patent system, with the earliest patents signed President George Washington, Thomas Jefferson, and Edmund Randolph.


The importance of a national patent system to protect the interests of inventors and promote technology transfer for full commercialization of new technologies cannot be overstated.


The federal patent system proved much more effective than state-by-state patenting in advancing the assimilation and adoption of new technologies. For example, serial inventor Oliver Evans had great difficulty enforcing exclusive patent rights awarded by the states of Maryland, Pennsylvania and New Hampshire across state lines. Evans happily relinquished his state-based patents to benefit from federal patent rights, including US Patent No. 3 was the Evans Mill System that revolutionized flour milling in the eighteenth century. This automated mill produced high-quality flour using two men instead of six; the mill operated continuously and turned out greater quantities of flour than the traditional process in a fraction of the time. Recognized as the first mass production process, Evans Mill System automated the manufacture of high-quality flour in a fraction of the time associated with the fragmented, labor-intensive traditional methods for flour milling.


The establishment of national patent protection played a critical role in early US economic development. As mentioned above, President Washington reviewed and signed all of the patents issued in 1790 including UD Patent No. 3 for the Evans Mill System – think about that for a moment, the US President personally reviewed and signed every patent. As owner/operator of the Mount Vernon Gristmill, Washington also was one of the first to license the new technology. Then within two years over a hundred others adopted the new Evans technology. Evans’ invention changed milling forever and boosted U.S. agricultural exports to Europe.


Despite continuing assertions by IP-skeptics that effective protection of intellectual property “represents a new stage in the US economy that threatens future progess,” we can see that effective patent protection is embedded in the DNA of the United States of America.


Supplanting ineffectual state-based patent systems with one national patent provided the framework for the national economy and also helped the United States to become an agricultural export powerhouse from the earliest years of the American Republic to the present. Our American revolutionaries understood that innovation was the need of the hour, and placed patent administration at the apex of national economic policy. Nearly 246 years after the Declaration of Independence in 1776, we continue to rely on their revolutionary spirit to support assimilation of new technologies for the sustainable creation of social and economic benefit.

 

About the Author

Ms. Susan Finston, J.D., M.P.P., is the President of Finston Consulting (June 2005- to present), a micro-multinational working with innovative companies on biotechnology, trade and development issues and currently focused on supporting strategies for Access and Benefit Sharing (ABS) for climate change adaptation, commercialization of natural products for oral health, translational research for microbiome peptides as COVID-19 therapies, as well as highly innovative energy technologies. Susan also serves as Senior Advisor at Princeton Capital Advisors. She is a KOL on intellectual property and innovation and in past years served as a Cleared Advisor to the Commerce Department and the U.S. Trade Representative (IPR, Tariff/Trade Facilitation). Susan is a contributing blogger at ‘best of the web’ biotechblog.com, and also posts at at 2ndmiddleage.blog.

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