Saturday, January 20, 2018

Confusion At Mt. Vernon on Who Introduced our Constintutional Patent Clause (1891)

by Steve Reiss (

In 1891, there was a massive celebration for the Centennial anniversary of the US Patent Act of 1790. Lectures and speeches about the US patent system were given by all levels of knowledgeable and important men. The speeches fill 500 pages of The Proceedings. The copy pictured is one of a kind; I purchased the loose, untrimmed pages, many years ago and had it custom bound. Remarkably, I have only recently got around to reading it. I will have a lot to say about it.

One speech was "General Washington As An Inventor And Promoter Of The Useful Arts - An Address Delivered At Mount Vernon, April 10. 1891, By J. M. Toner, M. D., On The Occasion Of The Visit Of The Officers And Members Of The Patent Centennial Celebration". Over 500 important persons traveled by boat down the Potomac to Mount Vernon to hear Dr. Toner's speech.

Dr. Toner says:
It is not certain who introduced the proposition [at the Constitutional Convention of 1787] regarding Patents and Copyrights; but, considering the personnel of the convention, it might have originated with either Washington or Franklin, and was certain of an earnest support from both.
Proceedings, p. 316.

While it is true that it is not certain who introduced the patent clause to the Constitutional Convention, it is certain that it was not either of Washington or Franklin. Dr. Toner's mistake is not his alone; apparently others have made this claim. However, as Edward Walterscheid, a noted US patent law historian says: 
The contention that a provision for copyrights and patents was "urged by no one less than Washington" in the context of the Constitutional Convention is simply wrong.
See Edward C. Walterscheid, To Promote the Progress of Science and Useful Arts:the Background and Origin of the Intellectual Property Clause of the United States Constitution, 2 J. Intell. Prop. L. 1, 41 (1994) (citations omitted).

If there is any uncertainty, the uncertainty lies with whether it was James Madison or Charles Pinkney, both of these two men, or Pinkney alone, and what was the language actually introduced.  See id, 45-51 (1994).  Adding to the confusion are conflicting writings of Madison, See id, and Pinkney's controversial role at the Convention, where claimed to have been the most influential delegate.

Bruce Bigbee's classic history of the US patent system adds to the confusion, saying: 
 David Brearley of New Jersey arose and presented to the assembly five suggested amendments concerning the powers of the future Congress.
The first four enlarged, restricted, or otherwise modified powers already contemplated in the emerging draft of the Constitution. The fifth proposal contemplated the creation of an entirely new Federal power protecting the works of authors and inventors.
Bruce W. Bigbee, Genesis of American Patent and Copyright Law (1967), p. 127.

As Dr. Toner is a noted historian and student of Washington, I try to give Dr. Toner's mistaken speech the benefit of the doubt. However, doing so is difficult. Walterscheid's conclusions do not reflect some modern or revisionist interpretation. For example, the Madison/Pinkney connection was described in the very first speech of the Centennial, "Birth And Growth Of The American Patent System", By Hon. Charles Eliot Mitchell, Commissioner Of Patents. Proceedings, p. 47.

How Dr. Toner could make such a major blunder in front of such a group of knowledgeable persons is inexplicable.


Thursday, January 18, 2018

Only the Best: Bell (telephone) and Bartholdi (Statue of Liberty)

by Steve Reiss (

Trivia Question:

What does Alexander Graham Bell (March 3, 1847 – August 2, 1922) and Frédéric Auguste Bartholdi (2 August 1834 – 4 October 1904) have in common?


They are both of European birth?

True, but not what I am looking for.

They both had patents?

Partially, but there is more to it than that.

They were beer buddies?  No, there is no evidence of that.

Give us the answer already, please.

Fine, they both had the same patent attorney, Anthony Pollok. Pollok immigrated to the United States about 1884 where he built a successful law practice and enjoyed the opulent lifestyle of a prosperous Washington, D.C. lawyer. Pollok's office was a half block from the Patent Office.

According to Wikipedia, Bell wrote of Pollok:

"Mr. Pollok has the most palatial residence of any that I have ever seen. It is certainly the finest and best appointed of any in Washington. None of the rooms are less than fifteen feet high. The portico is also about fifteen feet high - supported by massive polished Aberdeen-granite pillars. Mr. Pollok has been introducing me to some of the elite of Washington. Yesterday we called upon Mrs. Bancroft (wife of the historian)... Today we called on Prof. Henry of the Smithsonian - and on Saturday Mr. Pollok gives a party in my honor - and I expect to meet Sir Edward Thornton and members of the other foreign Embassies."

Bell's First Telephone Patent - See Pollok's Name in Lower Right Corder

The Statue of Liberty Patent (see Pollok's name in lower right corner).


Saturday, January 13, 2018

Jefferson to His Cousin About Potential Patent (January 1809)

by Steve Reiss (

The following is text from a letter from Thomas Jefferson to his young cousin Richard Randolph of the famous Randolph family of Virginia. The letter is dated, January 19, 1809. 
Thomas Jefferson

Under the Patent Act of 1793, at this time in 1809, interestingly,the patent would have been granted by Jefferson's Secretary of State, the president-elect, James Madison. The Secretary of War, referred to in the letter, was Henry Dearborn.

James Madison

Henry Dearborn

 The letter is now available for purchase for about $18,500, from a rare-bookseller in Germany: 
 I have duly received your letter of the 10th mentioning the invention of a bridle having the advantage of not going into the horse’s mouth. You know of course you can have a patent for the use of it on the terms mentioned in the patent law. In the event of the Secretary of War’s approving it, & wishing to make use of it, it would become a question whether he could give a price for permission to use it. I rather believe it would be lawful, but that he would venture to use it very moderately. If you should wish to try this latter experiment & would forward the bridle by the stage to me, I would submit it to his examination & take care that no use should be made of it injurious to your views. It would not at all be necessary for you to come here. Should the corps of volunteers proposed be raised, the appointment of the officers from field officers downwards will pretty certainly be referred by the President to the state executives. That is the quarter therefore to which your application will be to be made. I salute you with esteem & respect." 

Monday, December 25, 2017

Patent Office Deficits of 1919

by Steve Reiss (

From Journal of the Patent Office Society, April 1919: