Tuesday, February 12, 2019

Lincoln, Darwin, and Invention

The following is a reprint of a post I originally published on February 12, 2014.

Because today (February 12, 2014) is the 205th anniversary of the birth of both the sixteenth United States President, Abraham Lincoln, and the great naturalist Charles Darwin, I thought it might be worthwhile to say a few words about Lincoln, Darwin, and their relevance to contemporary issues of patent law.  I will return to my normal subject of patent remedies later this week.

Lincoln was the first, and so far only, U.S. president to obtain a patent--specifically, U.S. Patent No. 6,469, dated May 22, 1849, titled "Buoying Vessels over Shoals."  Here is a link to the patent, and another to a write-up about it by Cherise LaPine on the "How Stuff Works" website.  Lincoln's model of his invention is on display in the Smithsonian Institution in Washington, see here, but apparently the invention was never built or commercialized. 

In the late 1850s, Lincoln also delivered a lecture on "Discoveries and Inventions," which according to the website Abraham Lincoln Online was not a big hit either.  (It is also distressing to see, in a few parts, how the Great Emancipator was capable of making disparaging comments about other peoples, but the historical record is what it is.)  But the last paragraph has become well-known and is still cited in contemporary debates over patent policy:   
Next came the Patent laws. These began in England in 1624; and, in this country, with the adoption of our constitution. Before then any man might instantly use what another had invented; so that the inventor had no special advantage from his own invention. The patent system changed this; secured to the inventor, for a limited time, the exclusive use of his invention; and thereby added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.
From a comparative standpoint, it would be interesting to know whether any other heads of state have ever obtained patents.  Angela Merkel is a physicist and Margaret Thatcher was a chemist, but I’m not aware if either of them (or any other head of state) ever received a patent.  For an interesting discussion titled “Chemists and Engineers Who Were Heads of State,” see this link  

To my knowledge Darwin had no patents either, though of course the principle of evolution by natural selection is one of the key scientific insights of all time, and our understanding of it has certainly laid the groundwork for a huge amount of further discovery and invention.  In my I.P. courses, however, I often use Darwin’s race with Alfred Russel Wallace to be the first to publish the theory an example of the independent, near-simultaneous discovery of scientific principles or inventions by two or more persons.   Here's something I've written about the matter in the past:
The principle of evolution by natural selection traces its origin, of course, to the writings of Charles Darwin and (less familiarly to many readers) his contemporaries Alfred Russel Wallace, Patrick Matthew, and William Charles Wells.  See Charles Darwin, The Origin of Species by Means of Natural Selection or the Preservation of Favored Races in the Struggle for Life (1859); Charles Darwin, The Descent of Man and Selection in Relation to Sex (1871); Alfred Russel Wallace, On the Tendency of Varieties to Depart Indefinitely from the Original Type, 3 J. Proceedings of the Linnean Soc'y (Zoology) 53 (1858); see also Daniel C. Dennett, Darwin's Dangerous Idea:  Evolution and the Meanings of Life 49 (1995) (discussing Matthew’s articulation of the principle of natural selection); Stephen Jay Gould, The Structure of Evolutionary Theory 137-38  n.* (2002) (discussing Matthew and Wells); Michael Shermer, In Darwin's Shadow:  The Life and Science of Alfred Russel Wallace 147-48 (2002).  Darwin’s race to complete publication of The Origin of Species, upon learning that Wallace had independently discovered the principle of natural selection, is recounted in, among other sources, Shermer, supra, at 118-21, 128-50; Robert Wright, The Moral Animal 301-10 (1994).
Neither Darwin nor Wallace wrote upon a completely blank slate.  On the basis of fossil evidence and observation of existing species, a few naturalists before Darwin and Wallace had grasped the basic idea that species evolve; but no one had previously articulated with much precision the mechanism by which evolution occurs.  See Gould, supra, at 64-66, 137-39; Ernst Mayr, What Evolution Is 5, 23-25, 80-81 (2001); Mark Ridley, Evolution 7-9 (1993).  Perhaps the most notable attempt to articulate a pre-Darwinian theory of changes within species was that of the French naturalist Jean-Baptiste Lamarck, who proposed, incorrectly, in his 1809 work Philosophie Zoologique that species could pass on acquired characteristics to their offspring.  See Gould, supra, at 170-97 (providing a sympathetic overview of Lamarck’s life and work, while noting his errors); Mayr, supra, at 81; Ridley, supra, at 8-9 (noting that Lamarck did not invent the theory of inheritance of acquired characteristics, which can be traced at least as far as back as Plato). 
The fact that even landmark scientific discoveries (like the principle of evolution by natural selection, or Newton’s and Leibniz’s near-simultaneous invention of calculus), to say nothing of lesser discoveries and inventions, are not only based on earlier contributions (as Newton said, “If I have seen further it is by standing on the shoulders of giants”) but also often are arrived at roughly the same time by different individuals working independently is also of potential relevance in crafting an optimal patent policy.  For an interesting discussion, see, e.g., Mark A. Lemley, The Myth of the Sole Inventor, 110 Mich. L. Rev. 709 (2012) (arguing that the principal public benefit of the patent system may reside less in its role in stimulating invention than in stimulating patent races). 

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