Swanson on Authoring and Patent Production in the 19th C United States

Kara W. Swanson, Northeastern University - School of Law, has an interesting new book chapter: Authoring an Invention: Patent Production in the Nineteenth-Century United States.  It appears in MAKING AND UNMAKING INTELLECTUAL PROPERTY: CREATIVE PRODUCTION IN LEGAL AND CULTURAL PERSPECTIVE, Mario Biagioli, Peter Jaszi, and Martha Woodmansee, eds., University of Chicago Press, 2011.  Only the abstract is on SSRN:

In modern patent systems, an invention achieves legal existence as a text, the official words of a patent. The patent is a bureaucratic text, a product of multiple individuals linked in a faceless bureaucracy. From the perspective of the legal system, a U.S. patent is not a “literary work” to be protected by copyright but an inscribed verbal act that forms a different type of intellectual property, one that protects an idea rather than particular words. The legal separation between “Authors,” who generate “Writings,” and “Inventors,” who generate “Discoveries,” is considered part of the development of the modern law of intellectual property. This distinction, so doctrinally clear, blurs when one considers the actual process of creating patent texts, an act that might be considered authoring an invention. As the U.S. patent system developed as the world’s first formalized patent regime, a double shift occurred. The production of the patent text moved from the inventor to third parties, while simultaneously the patent text came both legally and culturally to represent the creation of a modern self, much as a literary work came to be seen as the product of an individual author through copyright law. This chapter traces the development of the patent as a unique type of bureaucratic text by examining this transition in American patent practice during the nineteenth century. By the end of the century, patents were authored in the sense that they described the “mental act” of an individual mind. This mind was analogous to the “romantic author” who displayed creative genius in the production of literary works, but the text of patents, unlike literary works, were no longer the product of the inventor’s pen. An inventor became a romantic author who did not write.