A History of the United States Patent Office

The Act of 1793 was passed largely in response to inventors complaints that the system established in 1790 was inefficient. Patent applications took several months to be examined, and less than half (fifty-seven total patents) were eventually issued between the 1790 Act and the Act of 1793. This discouraged inventors to file applications, which at the time required a trip to New York and later Philadelphia.

As Secretary of State, Thomas Jefferson was responsible for the examination and issuance of the first patents. He employed personnel from the University of Pennsylvania to assist in the examination of patent applications - this was an early example of indirect Federal support for the sciences. Additionally, this shows that Jefferson recognized the importance of an expert's opinion in determining novelty, usefulness, and reduction to practice of an invention. Although the Act of 1793 intended to fix the problems from 1790, however, more issues arose from this legislation.

In the era between 1793 and 1836, the patent system experienced an increase in the number of patent applications. The increased flow of applications highlighted many problems with the still loosely organized patent office. Dupree writes, "The patent office languished, but inventors were ever more active."¹² In general, the quality of patents suffered. Many patents issued were neither novel nor useful. Also, the courts were overwhelmed by a large number of infringement and patent validity suits.¹³

In 1836, Congress passed another Patent Act. This Act established a Patent Office, still under the Department of State, but separate from the duties of the Secretary of State. The Act was responsible for reforming problems in the previous acts - namely increasing the efficiency of the patent application process. Henry Ellsworth, who was instrumental in drafting the Act, was appointed to be the first Commissioner of Patents.

Through the Patent Act of 1836 a system was created for distributing new patents to libraries in every state. As a result, newly issued patents were distributed on a regular basis throughout the country. This provision resembles Hamilton's suggestion that information regarding new patents be published and made publicly available. A goal of the establishment of these libraries was to provide the general public access to the knowledge disclosed within the various patents. This practice led to an increase in the number of new applications as well as to an enhanced quality of such applications. "By consulting the patents in a sub-class a searcher may determine, before submitting an application to the office whether the invention contained in it has been anticipated by prior patents."¹⁴

By 1843, women played a role in the early Patent Office. Many were hired to make copies of patents that were to be distributed to the various libraries across the country. At this time, these women were paid ten cents for every hundred words copied. Annie Ellsworth, the daughter of Commissioner Ellsworth, was one of these patent copiers. She was given the opportunity to send the first message over Samuel Morse's telegraph from Washington, D.C. to Baltimore. Her now famous message was, "What hath God wrought!"¹⁵

By the early 1850's women were performing additional duties in the Patent Office. These tasks included assisting with patent examinations. The position was described as a clerk-copyist, not very different from the part-time work that was done by Annie Ellsworth and others. Clara Barton, founder of the American Red Cross was among the first women to hold this position. Rossiter suggests that the work was not very pleasant, "[they were] women patent examiners doing such detailed painstaking, and indoor ("feminine"?) work as the job required."¹⁶ By comparison, this position was similar to other jobs that women held in science during this time - many did tedious work in laboratories or calculations in observatories.

An important area of reform that the 1836 act addressed was the duration of a patent's effective life. Arguing for the necessity for expanded patent protection, Eli Whitney wrote to Congress in 1812 that he "was soon reduced to the disagreeable necessity of resorting to the courts of Justice for the protection of his [intellectual] property." Whitney found it difficult to enforce his cotton gin patent against numerous acts of infringement. Consequently, by the time the courts ruled on his infringement case, his patent's life had already expired.¹⁷ The Patent Act of 1836 maintained the life of a patent for fourteen years, but allowed for an extension of an additional seven years with the approval of the Commissioner.

Once the necessary legislation was passed, the enhancement of the statutory monopoly for patent holders opened the door for individuals and businesses to exploit the marketplace to the fullest extent possible. Particularly in the second half of the nineteenth century, many people became very wealthy from royalty streams derived from patented inventions. This environment gave rise to the American corporation - many of which are large, powerful companies still in existence. Examples of such landmark patents include Colt's revolver patents (U.S. Patent Nos. X9430 and 1,304, 1839); Otis' elevator patent (U.S. Patent No. 31,128, 1861); Yale's lock patent (U.S. Patent No. 31,278, 1861); and Eastman's camera patent (U.S. Patent No. 388,850, 1888).

During the nineteenth century, inventors realized the economic advantages associated with protecting their innovations in the form of patents. As a result, the number of applications for new patents increased from 765 in 1840 to 21,276 in 1867. This increase led to a proportional increase in the revenues and profits of the Patent Office realized through its fees. In 1840, the total revenue for the office was $38,056. This amount increased to $646,581 and was well over a million dollars by the end of the century.¹⁸

An additional factor that contributed to the increase of patent applications was the periods of the U.S. Civil War and the following Reconstruction Era. In response to a greater need for technological improvements, many patents were issued in specialized areas. For example, many patents were related to military applications - Gatling's machine gun patent (U.S. Patent No. 36,836, 1862) and Nobel's dynamite patent (U.S. Patent No. 78,317, 1868). Additionally, the periods including and following the Civil War saw rapid increases in the number of patent applications and issuances. In 1861, 4,643 applications were filed - by 1865 the number of applications grew to 10,664 and to 20,445 in 1868.¹⁹ As with future periods in American history, there was a noticeable shift in the efforts of inventors and scientists in order to accommodate the war effort. The period leading up to and including World War I saw patents issued for a submarine (1902, U.S. Patent No. 708,553), airplane (1906, U.S. Patent No. 821,393), rocket (1914, U.S. Patent No. 1,102,653), and hydroplane (1922, U.S. Patent No. 1,420,609). Similarly patents issued during the era of World War II included the jet engine (1946, U.S. Patent No. 2,404,334) and atomic reactor (1955, U.S. Patent No. 2,708,656).²⁰

Many of the patents issued during the 18th and 19th centuries were attempts to solve practical problems. In part, the practical nature of most patents was a reflection of Jefferson's ideals that only physical, useful inventions should be granted a patent. It was not until the mid-twentieth century that there was a call to patent "everything made by man under the sun." America saw an increased number of inventors. As a result, more patents were filed. Among these were several landmark patents during the first hundred years following the Patent Act of 1790. Included among these are Eli Whitney's Cotton Gin patent (U.S. Patent No. X72, 1774); Samuel Morse's Morse Code patent (U.S. Patent No. 1,647, 1840); Charles Goodyear's Vulcanized Rubber patent (U.S. Patent No. 3,633, 1844); Alexander Graham Bell's Telephone patent (U.S. Patent No. 174,465).²¹

A method of grouping like patents together was needed, and a resulting patent classification system was implemented. Eli Whitney's cotton gin patent is filed as the first patent under the classification 19/61 which is "Textiles: Fiber Preparation/Seed Boards." Since the issuance of this patent in 1774, 79 additional patents that innovated improvements off this original patent were issued. The last patent issued in this series was U.S. Patent 3,811,979 issued in 1975. Likewise, Samuel Morse's telegraph patent (classified at 178/2R "Telegraphy: Systems") provided the foundation for 807 additional patents related to his original invention. Classified as 156/276 "Adhesive bonding and miscellaneous chemical manufacture: with mass application of nonadhesive fibers or particles between laminae" Goodyear's vulcanized rubber patent was innovated upon by more than 450 later patents. Finally, Bell's telephone patent has over 350 related patents filed afterwards. This patent was classified as 379/167 "Telephonic communications: private or single line communications."^†

The explosion of patents enabled corporations to essentially create legalized monopolies on their inventions. Many have argued that this has hurt competition, while others show that the rise of the corporation beginning in the late nineteenth century has helped America grow into an economic power.

In conclusion, the existence and development of a patent system in the United States provided the necessary stimulus to foster an environment of rapid technological advancement. The legal treatment of patents as a piece of property, no different from real estate, provided the groundwork required to create large powerful corporations. These corporations profited significantly from their state-granted limited monopolies. The system created by the Patent Act of 1836 has remained largely intact, with a few minor adjustments. However, as our Founders feared, this system has led to continued abuses and problems with the United States Patent Office.

Patents currently take several years from date of application filing to date of issuance. Many times, a patent is issued long after the technology that was embodied in the patent has become obsolete. Patents are still being granted for obvious, non-useful inventions. Additionally, there currently exists a flood of patent infringement litigation - American corporations have realized the financial benefit associated with winning a patent infringement suit. Millions of dollars are routinely awarded for damages and patent licensing fees. For some, patents have become nothing more than a mechanism for bargaining in court.

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† This innovation analysis was done with the aid of M·CAM DOORS, a proprietary patent analytic tool.