Patent Lawyers, Crony Capitalism, and the Invention of the Telephone

Technology and the law


Reviewing Christopher Beauchamp's book Invented by Law: Alexander Graham Bell and the Patent That Changed America, Graeme Gooday discusses "how the patent became a key weapon of market power and the cornerstone of a new legal-industrial complex." Here's an excerpt:

Authorship disputed.
Schoolhouse Rock

Bell's lawyers, who brought around 600 infringement cases, tailored an interpretation of his patent to suit standards of legal proof and maximize the scope of his claims—an interpretation often at odds with Bell's own. It was not Bell but his lawyers, Beauchamp stresses, who "prepared the contending positions, marshaled evidence, and argued publicly and bitterly over the origins and nature of the technology."…Beauchamp's title—Invented by Law—is thus to be taken literally: it was the practice of law that defined the identity and status of the telephone as a novel invention and crafted a patent robust enough to survive courtroom challenges.

And challenges there were. Bell had not been alone, after all, in experimenting with the aural possibilities of the electrical telegraph. [Elisha] Gray, Daniel Drawbaugh, Amos Dolbear, Peter Dowd, Antonio Meucci, and others defended rival claims to priority.

The Bell team's legal victories produced "one of industrial world's most lucrative patent-based companies," signalling "the rise of a great new corporate power that used the full force of law to ruthlessly eliminate direct competition." Meanwhile, events progressed differently overseas:

There had been significant doubts across Europe about both the public benefit and industrial necessity of patents. In July 1877, Germany finally introduced patent legislation, but before Bell's lawyers could obtain rights, the technical press had already circulated designs of the telephone, rendering it part of the public domain. Thus Germany saw the productive development of diverse telephonic equipment under conditions of open competition, without patent rights restricting the innovating activities of Bell's rivals, such as Siemens. Even within the United States, the railroad industry had seen vigorous growth without using patents to underwrite single-company monopolies. Those who would argue for the economic necessity of patenting will not find support in either the telephone or the railroad, two key inventions in America's growth to industrial supremacy.

Read the rest here.

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  1. …but before Bell’s lawyers could obtain rights, the technical press had already circulated designs of the telephone, rendering it part of the public domain.

    That fucking internet screwed Bell over.

  2. Those who would argue for the economic necessity of patenting will not find support in either the telephone or the railroad, two key inventions in America’s growth to industrial supremacy.

    Goes without saying that the virtual explosion of new computer technologies people saw in the early eighties was because people couldn’t patent the computer; they could only patent a design which was rendered meaningless as new technologies were brought to the market that made the previous ones obsolete. The same goes for software ?most of the copyright infringement cases only served to weaken the plaintiffs and open the stage for more nimble competitors. Copyright and Patents end up turning into an albatross around the neck.

    Instead, how much progress have we made with that cure for cancer? Anyone?

    There is a very good reason why IP is not property ?you cannot protect ideas with a fence. Ideas spawn in people’s minds once the idea is realized (or copied, whatever). You cannot unring a bell.

    1. Computer explosion was a weird confluence of Stodgy Current Market IP thing (IBM now has a PC, so it’s no longer a toy and it’s OK to buy them) and IP?-Screw That with Compaq (?) reverse-engineering BIOS, so that any 8086 could run DOS and Lotus 1-2-3. Before (and after) there were far cooler machines made by other people (C=64 was the bomb!) but they couldn’t get the penetration DOS PC could, simply due to the nature of office culture.

  3. It’s also worth noting that while Bell’s lawyers and AT&T profited enormously from the patent Bell himself did not, and found the protracted litigation overly taxing.

    1. Bell didnt go hungry. No one forced him to become a patent troll.

  4. Patent law is an example of attempted social engineering from people you wouldn’t have expected it from: the people who wrote the Constitution.

    But like all attempts to socially engineer results, it didn’t end up working how they intended it to. But of course, like all social engineering, instead of getting rid of the misguided shit, people just do it harder. Because…reasons.

    1. Actually the reasons are well understood.

      All attempts at social engineering create concentrated benefits and diffuse costs.

      Basically those who benefit from the government interference benefit massively and have a strongly vested interest in maintaining the status quo. However the costs are diffuse spread fairly equally around the whole of society so no one really has any incentive to challenge the program.

    2. As I understand it, the point of patent law is to avoid the problems that came before it: innovations kept as secrets by guilds or individuals, which could then be lost. (E.g.: the electrical plating methods invented by Arabs that we only found out about many centuries later, when archaeologists found crude batteries.) It was meant to be a compromise to encourage innovation: you get an exclusive right to your invention for a time, and then it’s public domain. Copyright is supposed to work the same way.

      IMO most of the problems have come from excess: patenting trivial things, extending copyrights for too long to protect Disney and other corporations, etc.

      1. When the benefits are concentrated and the costs diffused, the tendency is always going to be towards what you call “excess”.

    3. In defense of the framers of the Constitution, under the Articles of Confederation individual states were given the authority to issue patents. It was a nightmare for trade between the states.

    4. Why wouldn’t you have expected that? The Constitution is full of social engineering. It is not a libertarian document.

  5. Wow, Jesse. This is certainly misleading excerpting:

    There had been significant doubts across Europe about both the public benefit and industrial necessity of patents.

    And the telephone changed their minds to start loving patents.

    From the same article:

    So remarkable were these displays of American innovation that lingering European doubts about the value of patent systems soon faded.

    1. There had been significant doubts across Europe about both the public benefit and industrial necessity of patents. In July 1877, Germany finally introduced patent legislation,

      To a Marxist, an inventor is the worker-not-owning-his-tools writ large; Bell is seen as a worker that DID get to keep his tools and reap his just rewards Germany’s socialist movement is growing at this point in history and patent legislation is seen as “protecting the worker” because an inventor gets to keep the tool he made. (The legal wrangling as to whether Bell is the rightful inventor is immaterial to the socialist’s argument. The inventor and not the Lord/Kaiser/Government reaps the rewards of the invention and that is all that mattered.)

      I’m not sure if I’m correct, but it seems to fit the modern left’s doublethink hatred of property rights EXCEPT for intellectual property.

    2. This is certainly misleading excerpting…From the same article: “So remarkable were these displays of American innovation that lingering European doubts about the value of patent systems soon faded.”

      From the part I did excerpt: “In July 1877, Germany finally introduced patent legislation.”

      1. Im completely lost as to what is supposed to be misleading here. I found nothing confusing or misrepresentative in the citation used; and I read the entire Boston Review source article.

  6. People should really contrast the rise of aviation to the rise of the automobile.

    Thanks to Henry Ford’s funding, Curtis was able to go the distance in his fight to keep his designs from being held to infringe on the Wright patents of monopoly. The result was that Curtis, whose willigness to share his design ideas and focused on production of aircraft got relatively rich, while the surviving Wright brother, whose entire business model consisted of rents extracted from other manufacturers based on his patents of monopoly went caput.

    In the first 50 years of its existence, the aviation industry enjoyed an explosive evolution, much like computers and long distance communication did in the aftermath of the smashing of the Bell systems monopoly.

    In contrast, automobiles, where the groundbreaking inventions occured in the 1870s – 1900 time frame, remained a luxury good and the revolutionary expansion was delayed for decades until the patents of monopoly restricting innovation finally expired.

    We are lucky that Henry Ford was so bothered by the damage patents of monopoly had done to automobile production that he was moved to spend a great deal of money preventing the same damage from aviation.

    1. It’s easy to point to the occasional patent of monopoly producing the outcome that is desired – ie a monopoly granted to an inventor facilitating an invention that otherwise wouldn’t occur, and/or encouraging the dissemination of his idea more widely since he didn’t depend on keeping it secret to assure his profits. But the reality is that most patents of monopoly just retard progress – by establishing a monopoly that strangles innovation.

    2. Actually in aviation there have frequently been patent trusts, in which holders of different patents trade the licensure to each other’s.

  7. I get a kick out of the irony of all those who oppose NSA bulk metadata collection also opposing IP rights. Tell me again why the NSA is infinging? They’re not stealing your property because they merely copy it. They aren’t trespassing because information isn’t “real.” Certainly no one herr would complain about the NSA scanning your soul because you don’t believe it’s real or tangible, so the metadata is, um, inconvenient. The only reason you care about it is because it is real. Just like IP.

    1. This would be a pretty good argument against anyone arguing that NSA surveillance is wrong because it violates property rights. And I suppose such people may exist somewhere.

    2. Does AT&T disclose the collection to their customers in the contract? No? Hmmm.

      Wait, I know! I want to start a telecom business that respects my customers’ privacy! Gosh it would be a shame if I was indicted for a nebulous federal crime if I refused to violate the contract with my customers!

      It’s not a property rights issue at all. It’s a contractual one.

      1. Social contract!

    3. So you really think it’s impossible to be pro 4rth amendment and anti-IP at the same time?

      If so, that’s fucking retarded.

      1. Apparently in order to believe that government surveillance is problematic we must also believe that the government granting of monopolies is not problematic.

        Isnt there a term for how idiots tend to believe themselves smarter than non-idiots?

  8. I’m not sure the telephone isn’t a good example in favor of patents. The telephone’s development had been fairly slow before Bell’s original patent, but then proceeded quickly. It may be that his claims were construed too broadly, but before his patent disclosure, people had worked on the telephone mostly in secret. The disclosure in his patent advanced the art greatly. Gray & Edison took considerable advantage, and they too got significant patents to issue.

    People make too big a deal about the seeming arbitrariness of Gray’s decision to file only a caveat on the day Bell filed a patent.

    It could well be that telephony would’ve made faster progress in Germany springing from Reiss’s work if they’d had a patent system then.

  9. I wouldn’t want to get rid of patents, but there are plenty of reforms I’d like. For one thing, there’s no reason for the USDOC, or for other countries’ gov’ts, to have the job of patent examination & registr’n, let alone a monopoly on it. Private competing firms could provide the service of examining & publishing patents for inventors. There’s no need even for a single MPEP for them; procedures need only remain consistent w patent law. The strength of a patent would depend largely on the strength of the examination that an organiz’n gave it. That could go for both utility & design patents.

    1. Different companies competing to issues patents? Eh, I don’t think that would work. Bad incentives. And what if different bodies patented the same thing from different people? And the incentives for bad issuing of patents increases. It’d be like competing bodies issuing titles for real estate. This is more in the area of weight and measures and time zones.

    2. I have an idea. Why dont we just let companies compete by building and selling their ideas? We could call this idea the “Free Supermarket”.

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