Inventing in Congress: Patent Law since 1790

Today’s post comes from Samantha Payne, intern in the Center for Legislative Archives in Washington, DC.

In August 1791, two men received identical patents from the Federal Government. John Fitch and James Rumsey claimed to have invented the same technology: a steamboat.

After a two-year battle for exclusive rights to their discovery, with Fitch calling Rumsey his “most cruel hidden and ungenerous Enemy,” each was devastated by the result. Rumsey complained that in the United States, “no invention can be secured . . . for no better reason than because it can be varied into a different Shape,” and he moved to London, where he died trying to perfect his steamboat. Fitch ultimately committed suicide after his investors abandoned him.

Both inventors blamed the Patents Act of 1790 for their woes.

The framers of the Constitution believed that patent law encouraged innovation by protecting private property. In Federalist #43, James Madison argued that creating patent law was a matter of “reason” and “public good.”

In February of 1790, a draft of the bill designed to encompass “every subject of invention and discovery” was ready. The bill proposed a board of patent commissioners to evaluate inventions for merit and originality. Additionally, it mandated a 14-year expiration date on patents and established patent filing procedures.The final version of the bill vested the power to grant patents in a three-person commission composed of the Secretary of State, the Secretary of War, and the Attorney General.

On April 10, 1790, President George Washington signed the bill into law.

The Patents Act of 1790 revolutionized patent law in three ways. For the first time in history, patents constituted an inventor’s right, not a privilege bestowed from a monarch. The 1790 act also launched an unprecedented examination system that introduced standards for patentable inventions. The law further specified that a patent could not be granted if the invention were “used by . . . others than the Petitioners or those who derived their knowledge thereof from or under them.” In this way, Congress hoped to diminish the need for inventors to work secretly to protect their discoveries.

Congress passed a new Patents Act in 1793. By this point, a substantial backlog of patent applications had accumulated because the cabinet officials lacked time to devote to patent examination. Inventors also complained that the board’s decisions seemed arbitrary.

Inefficiency and inconsistency compelled Congress to dismantle the patent examination system and replace it with a clerical registration system. This system remained in place until 1836, when Congress created the United States Patent Office. The new office relied on a panel of experts in the arts and sciences to evaluate patent applications.

Congress continued to intervene in patent disputes even after it created the Patent Office. For example, in November 1846, Dr. William Morton won a patent for ether, an inhalant that became the first form of surgical anesthetic. Almost immediately, Morton sent a representative to petition Congress for a monetary award. Two other doctors—including Morton’s former teacher and his former roommate—protested, claiming that they had contributed significantly to the discovery.

In 1849, Morton traveled to Washington, DC, to make his case before Congress. He claimed full credit for the discovery and even demonstrated the use of ether on a patient in front of a select committee. Congress issued a report concluding that Morton deserved the credit, but declined to offer him a financial reward.

Patent law still stirs controversy in Congress. The Senate and House of Representatives debated a patent reform bill as recently as May 2014.

Last year, the United States Patent and Trademark Office issued nearly 300,000 patents—a fairly substantial increase from the three issued by the Federal Government in 1790!

**The Center for Legislative Archives **is marking the 225th anniversary of the First Congress by sharing documents on Tumblr and Twitter; use #Congress225 to see all the postings.

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