The old adage “You can’t tell a book from its cover” certainly holds for two recent works that ring alarm bells about today’s system of patents and copyrights: Jeffrey H. Matsuura’s Jefferson vs. the Patent Trolls: A Populist Vision of Intellectual Property Rights (Charlottesville: University of Virginia Press, 2008, pp. ix+154, $27.95) and Michele Boldrin and David K. Levine’s Against Intellectual Monopoly (New York: Cambridge University Press, 2008, pp. viii+298, $30). Matsuura’s jaunty title and dust-jacket picture resembling a “better mousetrap” suggest a sprightly story, perhaps of Jefferson’s actual encounters with specific patent applications in the years 1790–1793, when he personally was one-third of the Board of Arts charged with judging their utility and novelty. Alas, that would have required primary research in probably nonexistent documents. Instead Matsuura has written an extended essay on Jefferson’s intellectual worldview with regard to science, technology (“useful arts”), collective creation of knowledge, liberation by enlightenment, and the welfare of society. Also misleadingly, the red, white, and black dust jacket of Boldrin and Levine’s book screams “against intellectual monopoly” across the circular copyright symbol, provoking expectation of an incoherent rant. But the text is serious and straightforward, clearly and eloquently expressed, and well-documented. It insists that patents and copyrights are unnecessary for the production of inventive and innovative ways to benefit humanity, and that they damage economy and society in all the ways that monopolies inevitably do.

A lawyer, Matsuura suggests in gentlemanly, somewhat fusty terms that Jefferson’s ambivalent but ultimately “populist” reservations about restriction of knowledge by patents and copyrights provide a valid message to us today. In contrast, economists Boldrin and Levine boldly assail the concept itself of intellectual “property” as a mere euphemism for “monopoly,” arguing that patents and copyrights are not only unnecessary but actually block invention and innovation.

Neither book serves as history of technology. Both consider James Watt’s vigorous enforcement of his steam engine patent objectionable; tongue-in-cheek, Boldrin and Levine identify Watt as “this book’s designated scoundrel” (p. 163) and deplore in more detail Watt’s suppression of further development of steam engine technology until the expiration of his extended patent on the separate condenser. Matsuura mentions few other specific patents but focuses on Oliver Evans’s persistent defense of his milling patent as an example of behavior Jefferson opposed. Boldrin and Levine discuss a few other historical examples among inventions and innovations familiar to readers of this journal, either to argue that they didn’t need patent inducement to come into existence or that they blocked further invention and innovation, or both. On the whole, neither book will much deepen a reader’s understanding of the history of invention or of patenting, but either will increase one’s recognition of a crisis in the operation of patenting and copyright systems today.

On that latter topic, however, both books are emphatic: today’s national and global intellectual property regime is “chaotic” (Matsuura, p. 9) and “sadly broken” (Boldrin and Levine, p. 244). Matsuura speaks of current-day “challenges” to the system, while Boldrin and Levine more radically speak of the system’s intrinsic “evil” in treating ideas as private property. Both books say that the balance has been disrupted between a patent system’s aim to provide incentives for invention and innovation on the one hand and to provide diffusion of their benefits to society on the other. Both books are more concerned to promote benefits to society than incentives to individuals.

Matsuura’s repetitive and somewhat lugubrious essay about Jefferson is interspersed with sections about the complexities of present-day patent and copyright problems, with wistful assertions that adoption of Jefferson’s views might help solve them. The reverent tone in which he recounts Jefferson’s benign desire to see knowledge of all sorts spread to everyone capable of using it for the common good is only slightly tempered by his judgment that Jefferson really did not understand the impulse of inventors who wanted to make money from their inventions. He infers that Jefferson disapproved of a patentee who didn’t solely use his invention himself to make something useful but instead manipulated the patent as a piece of property that could be licensed or sold or mortgaged or speculated with or used as a weapon against another inventor. These uses Matsuura considers, pejoratively, “commercialization” of the patent.

Implicitly, Matsuura’s identification of Jefferson as an inventor reveals a blurry definition of invention: “Jefferson was an inventor, but he was more interested in improving existing products than in creating new ones. His work as an inventor focused on agricultural equipment, like the plow, and labor-saving devices, like the polygraph.” This was the handwriting copying device (shown on the dust jacket of the book) that Jefferson neither made nor, of course, patented, but appreciatively used and promoted “to his many friends and colleagues” (p. 67).

Matsuura eschews annotation. For Jefferson, he apparently relies mostly on his reading of Julian P. Boyd’s multivolume edition of Jefferson’s papers and Dumas Malone’s six volumes of Jefferson biography. His generalizations about Jefferson as a “kindred spirit to scientists and inventors” (p. 53ff) draw on respectable secondary studies that are rather loosely identified in a few pages at the back of the book. The undergraduate reader who might like to learn about the polygraph should be advised to follow the reference to Silvio Bedini’s 1984 Thomas Jefferson and His Copying Machines.

Matsuura delays explaining the term “patent trolls” until his penultimate chapters. They are those who obtain patents, then simply wait for others to infringe upon them . . . they let their patents sit unused . . . [while] they monitor commerce with an eye toward parties who may be using the patented inventions in various products. When they find such use, the trolls . . . demand payment of license fees as compensation for permission to make use of the protected inventions. If the contacted parties refuse to pay, the trolls may choose to go to court to enforce their patents. (p. 101)

Matsuura’s troll seems to be roughly equivalent to Boldrin and Levine’s “submarine,” driven by a patentee who prolongs the patenting process by repeated amendments of a very generally worded patent in order to lurk unseen beneath the sonar until someone else “infringes,” and then rapidly procures the patent, surfaces, demands license fees, and sues the infringer if he doesn’t comply. They offer George Selden’s “road engine” of 1895 and Jerome Lemelson’s data-identification techniques more recently as examples of submarine patents (pp. 84–85).

Despite being economists, Boldrin and Levine have striven mightily to write without jargon and to minimize tables, graphs, and math. They explain in understandable language the economic-theoretical underpinning of their argument. They disarm and engage the skeptical reader with such remarks as “Always beware of theorists bearing radical ideas—most ideas are bad, and most theories are wrong. . . . Therefore we must first and foremost convince you that our ideas are firmly grounded in facts and practice” (p. 13). In attempting to do so, Boldrin and Levine marshal evidence from a wide range of human innovations over long times in the Western “developed” nations—from agriculture to open-source software—to point out how very much has been created and innovated before patent protection or in places without it, and that the establishment of “intellectual monopoly” systems has not been followed by an increase in invention and innovation. The facts and reasoning they offer are fastidiously annotated to be easily followed up in a detailed bibliography of books, journals, and, yes, internet websites. Graduate students in history might well benefit from using this book to follow some of the leads as an exercise in critiquing the argument.

Having studied the career of a nineteenth-century Yankee inventor whose management of his patented inventions was more than usually successful commercially, I read this book with both admiration and unease at its argument against the conventional wisdom concerning the role of patents’ tradeoffs between restriction and disclosure of inventions. They acknowledge that an inventor can make more money with than without a patent, but they don’t consider that reward to him is a weighty argument in favor of patenting. It particularly bothered me that Boldrin and Levine pay virtually no attention to the fact that a patent or copyright is a temporary monopoly; they give the impression that it is permanent.

However, even though most economic transactions have very much speeded up since the nineteenth century, the duration of patent protection has not shortened commensurately; in fact, it has been lengthened substantially from its initial fourteen years to twenty years, even without extensions, and the copyright has become a matter of more than a century. Applications to the Patent Office are increasing exponentially in number and craziness, and the scope of what is patentable is expanding daily. To Boldrin and Levine, the situation is “patently” dire: out of control and lending justification to their characterization of it as “evil.” Recognizing that abrupt abolition would be worse in the short run, especially with regard to the pharmaceutical industry, they offer measures for reform in their final (tenth) chapter and remark that “should any congressperson or senator be interested in working out the details . . . we hereby volunteer our time and expertise to the enterprise, for free” (p. 258).

A congressperson buying their book will find it is covered by copyright in the authors’ names. Purchase of Matsuura’s book will benefit “the Rector and Visitors” of the University of Virginia. Would Jefferson smile at that?

Carolyn C. Cooper, research affiliate at Yale University, is author of Shaping Invention: Thomas Blanchard’s Machinery and Patent Management in Nineteenth-Century America (1991), and would be glad to sell you a copy.

©2010 by the Society for the History of Technology.

Filed under: Vol. 51 No. 2 (April 2010)