| Book Review | Law and History Review, 25.3

Book Review

B. Zorina Khan, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790–1920, Cambridge: Cambridge University Press, 2005. Pp. xvii + 322. $60 (ISBN 0-521-81135-X).

The history of American intellectual property law has become extremely important in recent years. The United States Supreme Court repeatedly looks to nineteenth-century patent and copyright jurisprudence to justify its decisions today. In the increasingly acrimonious debates over the nature of patent, copyright, and other intellectual property rights in our new digital era, historical claims about these legal entitlements abound. Somewhat surprisingly, history matters a lot for how we understand our forward-looking intellectual property doctrines today. For these reasons alone, Khan's empirical study of patent and copyright practices in the nineteenth century is an extremely important and valuable contribution to this discourse.

Despite the sub-title's reference to copyrights, Khan focuses primarily on patents, which accounts for almost three-quarters of the monograph. This is hardly a failing, though, as there has been too little empirical work done in the history of patent law. Thus, Khan's statistical studies of nineteenth-century patentees and their litigation practices represent some of the first steps in turning what has been largely historical rhetoric about patent rights into historical exegesis.

Khan actually was prompted to write this book in response to an intriguing historical question: Why was the American patent system so successful in the nineteenth century relative to pre-existing patent systems in other countries, particularly England and France? In fact, by the end of the nineteenth century, America had displaced England and Europe as the principal source of inventive activity, becoming a source of wonder to functionaries from many foreign countries. In discussing these comparative aspects of patent law in the beginning and concluding chapters of her book, Khan nicely bookends her empirical analyses of American patent law. She concludes that the American patent system provided clearly defined and enforced property rights for all inventors where the English and French offered only privileged patronage to elites coupled with rampant discretionary authority. The result: the American patent system unleashed an inventive spirit within its populace unparalleled in the nineteenth century.

In proving this historical claim, she presents some of the most in-depth statistical analyses of nineteenth-century patent law to date. In addition to her survey of the characteristics of nineteenth-century patentees, including, among others, their occupational backgrounds, education, geographical locations, and, quite significantly, the role of women inventors, she also offers an engaging and fascinating statistical survey of antebellum patent litigation. Among many interesting insights, she finds that antebellum courts were generally supportive of patents, treating them as important property rights, which may be of surprise to the academics and policy activists who claim today that patents were viewed historically as only special, limited monopoly grants.

These empirical findings ultimately form the core of Khan's thesis about the American patent system that is succinctly stated in the title of her book: American patent law succeeded historically because it represented "the democratization of invention." In studying the unique features of the American patent system, she uncovers fascinating details about nineteenth-century patent practices. For instance, she explains how Congress and the federal judiciary faithfully enforced the legal requirement that patents were to be granted only to the "first and true inventor," regardless of gender, socio-economic class, or even slave status. Her analyses further highlight the importance of what might seem to be only minor legal details, such as low filing fees for patent applications and public accessibility to issued patents. It was the careful attention paid to implementing such democratic features in its nascent patent system that incentivized American citizens from all walks of life to propertize their inventions in response to unmet market needs.

Legal historians and law professors, of course, may rightly quibble with some of Khan's claims, particularly in the beginning and concluding chapters of the book. In fact, she unfortunately sets herself up to be disregarded for rhetorical excess on the first page, where she claims that the Framers thought it was "self-evident" that the Copyright and Patent Clause advanced "democratic values," as evidenced by the fact that this constitutional provision "was included in the very first Article of the U.S. Constitution" (1). She apparently considered this an important insight, because she repeats it toward the end the book (254). Of course, the only reason the Copyright and Patent Clause is in Article I, Section 8 is that this is simply the part of the Constitution enumerating the powers of the legislative branch, such as declaring war, punishing piracies, and creating a post office. The inclusion of patents and copyrights in this list of legislative powers has nothing to do with the importance of the topic to the Framers as a "democratic value."

Khan nonetheless overcomes these minor deficiencies in the substance of the book when she presents her economic and statistical analyses of nineteenth-century patent practices. Given the widespread appeal to history in modern judicial opinions, academic articles, and public policy debates, such empirical work is important. Historians and economists may dispute some of her methods or conclusions, but such debates about the historical facts will be a welcome change to the ascendancy of rhetoric on such subjects. Khan's work is an important contribution to our discourse about American patent law and its historical development.

Adam Mossoff

Michigan State University

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