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Article Review: Patents and Industrial Growth

April 2nd, 2008

This essay is a review of an article written by B. Zorina Khan in Journal of Economic History (55:1), 58-97. The title of the original article is “Property Rights and Patent Litigation in Early Nineteenth-Century America”.

For as long as I can remember, I have been interested in inventions. I have thought about many things, from designing a hat for babies to wear when they first begin walking to how to make a computer think using something other than the binary system. In the textbook, America by Tindall and Shi, the authors describe the last quarter of the 19th century as one of great inventions, big business, and industrial growth (675-706). Certainly, the whole question of what caused the industrial revolution is very fascinating, especially since current events describe Afghanistan as a place where there is no electricity, food, water, roads, or industrial development – why here and not there? In Chapter 19 of America, as evidence of growth, the authors point out that the U.S. Patent Office registered 234,956 inventions in the 1890’s, compared to only 276 in the 1790’s (Tindall and Shi 652). I have limited my topic to the question of whether the patent office encouraged the growth of technology in the last quarter of the 19th century as described in the article by B. Zorina Khan entitled, “Property Rights and Patent Litigation in Early Nineteenth-Century America” (58-97).

The argument made by Khan in her article is that the existence of the patent office, patent law, and the judicial system encouraged technological change and stimulated growth in the late 1800’s. In order to prove her assumption, the author examined all of the 795 patent cases from 1790 to 1860 (61). Khan attempts to answer other researchers who contend that patents were of little use during the beginning of the industrialization period because: 1) patents were unenforceable and easily copied, 2) some inventions did not qualify for a patent, and 3) the legal system of the times was “anti-patent”. These scholars question whether the patent office encouraged growth. They also doubt whether money or market forces have a substantial effect on the level of inventiveness (59).

Khan makes several good points. If patents were of little value, as others have suggested, people would have relied on other methods to protect their property rights. Yet, the majority of all of the important inventions of the time were patented. In addition, many investors of the 19th century bought into the creative ideas of others in the hopes of making a profit (Khan 60). The investments of early venture capitalists demonstrate the relationship between inventions and profit.

A major contention made by the author to counter the argument that the courts were not responsive to inventors involved the examination of all 795 patent cases from 1790 to 1860. Few cases (of any kind) were brought before the federal courts during this time period and, of all the patent cases, most were settled out of court (Khan 61, 63, 80, 88-89). Many of the cases that did make it to court, were argued because of market strategy, not enforcement of property rights (67). Most court cases reflected an attempt to extend an existing patent, rather than a question of enforcement. Most surprising of all, only 76 patents accounted for 585 of the 795 total cases (70). These facts bolster the author’s claims because if dissatisfaction with the court actually did exist and enforcement problems were an issue, more and different types of claims would have been filed with the courts.

In examining the patent cases, the author also notes that the outcomes of the cases were consistent across the country (Khan 86). This, too, argues in the author’s favor. Other researchers contend that judges were anti-patent prior to 1836, then, later, became more liberal and patent friendly. Khan, however, counters this claim by explaining the 1836 changes in patent law as the reason for a change in both the number and results of patent cases after that date (62-63). The Commissioner of Patent became responsible for infringement disputes so the type of cases heard by the court system changed. The consistency and non-arbitrariness of the courts also is evident because judges relied on earlier cases to help in later decisions (64).

As evidence for her claim that patent law encouraged technological growth, Khan also uses the number of patent cases filed per capita, the sales of patent rights, and the practice of inventors advertising pending patents (93). Clearly, these would not occur unless patents were enforceable and encouraged growth. As the population grew in urban areas and markets expanded, patent filings increased. Inventors and investors profited from the sale of inventions.
The fact the inventors advertised that their patents were pending is evidence that patents were, indeed, valuable (93).

Khan’s article presents evidence that the patent office encouraged industrial growth and effectively counters those that question the effectiveness of the early patent office. However, as she admits, only one piece of the picture was examined. A more persuasive argument might include a comparison of growth versus patents in other countries with that in the United States. Additionally, an examination of this period of growth might be compared with other periods in the history of the United States. She also did not mention the possible effects of rural to urban transition, transportation advances, western settlement, and increased immigration on the surge of inventions.

Khan’s article and the question of patents in general are very relevant to our history course. The text should have said more about this topic and the lecture should question the role of the patent office during the time of the industrial revolution. If, as Khan suggests, the patent office had some responsibility for the unparalleled growth of the late 19th century, the topic deserves some mention in order to receive a fuller picture of the times.

Works Cited

Khan, B. Zorina. “Property Rights and Patent Litigation in Early Nineteenth-Century America.” Journal of Economic History 55:1 (1995): 58-97.

Tindall, George Brown, and David E. Shi. America: A Narrative History. Brief 5th ed., New York: W. W. Norton & Company, Inc., 2000.

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