Historically Speaking: The Long Road to Protecting Inventions With Patents

Gunpowder was never protected. Neither were inventions by Southern slaves. Vaccines are—but that’s now the subject of a debate.

The Wall Street Journal

May 20, 2021

The U.S. and China don’t see eye to eye on much nowadays, but in a rare show of consensus, the two countries both support a waiver of patent rights for Covid-19 vaccines. If that happens, it would be the latest bump in a long, rocky road for intellectual property rights.

Elijah McCoy and a diagram from one of his patents for engine lubrication.
ILLUSTRATION: THOMAS FUCHS

There was no such thing as patent law in the ancient world. Indeed, until the invention of gunpowder, the true cost of failing to protect new ideas was never even considered. In the mid-11th century, the Chinese Song government realized too late that it had allowed the secret of gunpowder to escape. It tried to limit the damage by banning the sale of saltpeter to foreigners. But merchants found ways to smuggle it out, and by 1280 Western inventors were creating their own recipes for gunpowder.

Medieval Europeans understood that knowledge and expertise were valuable, but government attempts at control were crude in the extreme. The Italian Republic of Lucca protected its silk trade technology by prohibiting skilled workers from emigrating; Genoa offered bounties for fugitive artisans. Craft guilds were meant to protect against intellectual expropriation, but all too often they simply stifled innovation.

The architect Filippo Brunelleschi, designer of the famous dome of Florence’s Santa Maria del Fiore, was the first to rebel against the power of the guilds. In 1421 he demanded that the city grant him the exclusive right to build a new type of river boat. His deal with Florence is regarded as the first legal patent. Unfortunately, the boat sank on its first voyage, but other cities took note of Brunelleschi’s bold new business approach.

In 1474 the Venetians invited individuals “capable of devising and inventing all kinds of ingenious contrivances” to establish their workshops in Venice. In return for settling in the city, the Republic offered them the sole right to manufacture their inventions for 10 years. Countries that imitated Venice’s approach reaped great financial rewards. England’s Queen Elizabeth I granted over 50 individual patents, often with the proviso that the patent holder train English craftsmen to carry on the trade.

Taking their cue from British precedent, the framers of the U.S. Constitution gave Congress the power to legislate on intellectual property rights. Congress duly passed a patent law in 1790 but failed to address the legal position of enslaved inventors. Their anomalous position came to a head in 1857 after a Southern slave owner named Oscar Stuart tried to patent a new plow invented by his slave Ned. The request was denied on the grounds that the inventor was a slave and therefore not a citizen, and while the owner was a citizen, he wasn’t the inventor.

After the Civil War, the opening up of patent rights enabled African-American inventors to bypass racial barriers and amass significant fortunes. Elijah McCoy (1844-1929) transformed American rail travel with his engine lubrication system.

McCoy ultimately registered 57 U.S. patents, significantly more than Alexander Graham Bell’s 18, though far fewer than Thomas Edison’s 1,093. The American appetite for registering inventions remains unbounded. Last fiscal year alone, the U.S. Patent and Trademark Office issued 399,055 patents.

Is there anything that can’t be patented? The answer is yes. In 1999 Smuckers attempted to patent its crustless peanut butter and jelly sandwich with crimped edges. Eight years and a billion homemade PB&J sandwiches later, a federal appeals court ruled there was nothing “novel” about foregoing the crusts.

Historically Speaking: Beloved Buildings That Rose from the Ashes

From ancient Rome to modern London, great structures like Notre Dame have fallen and been built again

The Wall Street Journal, May 2, 2019

A disaster like the Notre Dame cathedral fire is as much a tragedy of the heart as it is a loss to architecture. But fortunately, unlike most love affairs, a building can be resurrected. In fact, throughout history communities have gone to remarkable lengths to rebuild monuments of sacred or national importance.

There is no shortage of inspirational examples of beloved buildings that have risen from the ashes. The Second Temple was built in Jerusalem in 515 B.C. following the destruction of the First by King Nebuchadnezzar II of Babylonia in 586 B.C.; Dresden’s Baroque Frauenkirche was faithfully rebuilt in 2005, after being destroyed by bombs in 1945.

Often the new structures are exact replicas, as with Venice and Barcelona’s opera houses, La Fenice and Gran Teatre del Liceu, both of which were rebuilt after suffering devastating fires in the 1990s. If France decides to rebuild Notre Dame according to the principle “as it was, where it was,” the skill and technology aren’t lacking.

In other cases, however, disasters have allowed for beloved landmarks to be reimagined. The Great Fire of Rome in 64 A.D. led to a revolution in architectural styles and techniques. After Hagia Sophia cathedral was torched during riots in Constantinople in 532, the Byzantine Emperor Justinian asked his architects Anthemius and Isidore to build something bold and impressive. It was risky to change such a renowned symbol of the Eastern Roman Empire; moreover, for security and financial reasons, the work had to be completed in just six years. Still, the result dazzled Justinian, who exclaimed when he saw it, ‘‘Solomon, I have outdone thee.” Almost a thousand years later, following Constantinople’s fall to the Turks in 1453, Sultan Mehmet II had a similar reaction and ordered Hagia Sophia to be turned into a mosque rather than destroyed.

Sir Christopher Wren, who rebuilt St. Paul’s Cathedral in London, was not so lucky in the reactions to his creation. The Great Fire of 1666 had left the medieval church in ruins, but there was little appetite for an innovative reconstruction and no money in the Treasury to pay for it. Wren endured setbacks at every turn, including a chronic shortage of stone. At one point, Parliament suspended half his salary in protest at the slowness of the work, which took almost three decades and spanned the reigns of five monarchs.

The reason for the delay became clear after the finished building was revealed to the public. Inspired by drawings of Hagia Sophia, Wren had ignored the approved design for a traditional reconstruction and quietly opted for a more experimental approach. Ironically, many of his contemporaries were appalled by the now iconic great dome, especially the Protestant clergy, who deemed it too foreign and Catholic-looking. Yet Wren’s vision has endured. During the German bombing of London in World War II, St. Paul’s was the one building that Winston Churchill declared must be saved at all costs.

It is never easy deciding how to draw the line between history and modernity, particularly when dealing with the loss of an architectural masterpiece. There isn’t always a right answer, but it may help to remember Churchill’s words: “We shape our buildings and afterwards our buildings shape us.”

WSJ Historically Speaking: On the Trail of Art Looters

A relief from Rome’s Arch of Titus showing the spoils of Jerusalem. PHOTO: DEAGOSTINI/GETTY IMAGES

Since 2014, Islamic State has been doing its best to destroy all traces of pre-Islamic culture in Iraq and Syria. Hammers and explosives aren’t its only tools. The antiquities trade is worth billions, and the self-styled caliphate is funding itself in part by looting and selling ancient treasures.

In late May, the Journal reported that U.S. and European Union authorities were scrutinizing a pair of art dealers as part of a wider investigation into who has been facilitating the market for ancient coins, statues and relics stolen by Islamic State. The dealers say they have done nothing wrong.

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