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Figures of Invention A History of Modern Patent Law 1st
Edition Alain Pottage Digital Instant Download
Author(s): Alain Pottage, Brad Sherman
ISBN(s): 9780199595631, 0199595631
Edition: 1
File Details: PDF, 3.60 MB
Year: 2010
Language: english
FIGURES OF INVENTION
FIGURES OF
INVENTION
A History of Modern Patent Law

Alain Pottage
Brad Sherman

1
 1
Great Clarendon Street, Oxford ox dp
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Pottage, Alain.
Figures of invention: a history of modern patent law / Alain Pottage, Brad Sherman.
p. cm.
Includes bibliographical references and index.
ISBN 978–0–19–959563–1 (hardback : alk. paper)
1. Patent laws and legislation—United States—History. I. Sherman, Brad. II. Title.
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Typeset by Glyph International, Bangalore, India

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ISBN 978–0–19–959563–1

1 3 5 7 9 10 8 6 4 2
 TABLES OF CASES

CANADA
Harvard College v Commissioner of Patents [2002] SCC 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
Schmeiser v Monsanto [2004] 1 SCR 902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

UNITED KINGDOM
American Cyanamid Co (Dann’s) Patent [1971] RPC 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
Boulton & Watt v Bull (1795) 2 H.Bl. 463; 126 ER 651 . . . . . . . . . . . . . . . . . . .6, 65–7, 68, 70, 74
Edgebury v Stephens (1691) 1 Web.P.C.35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Millar v Taylor (1769) 4 Burr. 2303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 83

UNITED STATES
Adams v Jones 1 F.Cas. 126 (1859) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Ames v Howard 1 F.Cas. 755 (1833) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Amgen v Chugai Pharmaceutical Co. 927 F.3d 1200 (Fed. Cir. 1991) . . . . . . . . . . . . . . . . 177, 192
Applegate v Scherer 332 F.2d 571 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Argoudelis 434 F.2d 1390 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185, 186, 188
Arzberger, Re 112 F.2d 834 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184–5, 199
Aultman v Holley 2 F.Cas. 217 (1873) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Barrett v Hall 2 F.Cas. 914 (1818) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 68, 69, 70, 101–2
Bergy, Re 596 F.2d 952 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Bilski, Re 545 F.3d 943, 88 USPQ 2d (Fed. Cir.2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 82
Bilski v Kappos (US Sup. Ct, 28 June 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 82
Bischoff v Wethered 76 U.S. 812 (1869) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62–3
Blake v Stafford 6 Blatchf. 195 (1868) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Blanchard v Puttman 3 F.Cas. 633 (1867) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Blanchard v Sprague 3 F.Cas. 648 (1839) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 14, 69
Bourne v Jones 114 F Supp 413 (1951); 207 F.2d 173 . . . . . . . . . . . . . . . . . . . . . . . . . 42, 176, 177
Bragg-Kliesrath Corp. v Farrell 36 F.2d 845 (1929) . . . . . . . . . . . . . . . . . . . . . . .139, 141, 145, 147
Brooks v Fiske 56 U.S. 212 (1853) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Burnelli, Re 38 F.2d 801 (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Burr v Duryee 68 U.S. 531 (1853) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80, 92, 99, 114, 116

Cadillac Motor Car Co. v Austin 225 F. 983 (1915) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

Canda v Michigan Malleable Iron Co. 124 F. 486 (1903) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Clark Pomace Holder Co. v Ferguson 17 Fed.Rep. 79 (1883) . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Cole Nursery v Youdath Perrenial Gardens 17 F.Supp. 159 (ND Ohio 1936) . . . . . . . . . . . 161, 198
Continental Paper Bag v Eastern Paper Bag 210 U.S. 405 (1907) . . . . . . . . . . . . . . . . . . . . . . . . 76
Coon v Wilson 113 U.S. 268 (1884). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Corning v Burden 56 U.S. 252 (1853) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77–8, 82
Curry v Union Electric Welding 230 F. 422 (1916) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

xi
 Tables of Cases

Diamond v Chakrabarty 447 U.S. 303 (1980) . . . . . . . . . . . . . . . . . . . . . . . . 6, 15, 172, 179, 180,
181, 182, 189, 191, 193
Diamond v Diehr 450 U.S. 175 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Dixie Rose Nursery v Coe 131 F.2d 446 (DC Cir. 1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Dixon v Moyer 7 F.Cas. 758 (1821) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Dunn v Ragin v Carlile 50 USPQ 472 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176, 195

Electro Metallurgical Co. v Krupp Nirosta Co. 33 F.Supp.324 (1940) . . . . . . . . . . . . . . . . 177, 178
Enzo Biochem. Inc. v Gen-Probe Inc 323 F.3d 956 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . 192, 193
Evans v Chambers 8 F.Cas. 837 (CC PA 1837) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Evans v Eaton 20 U.S. 356 (1822) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 98, 100, 114, 132, 134
Evans v Jordan 8 F.Cas. 872 (1813) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Ewald, Re 129 F.2d 340 (CCPA 1942) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 203

Fiers v Revel 984 F.2d 1164 (Fed. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

Flower v Detroit 127 U.S. 563 (1887). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Fruit Growers v Brogdex Co. 283 U.S.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 203
Funk Bros v Kalo Inoculants 333 U.S. 127 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . 173, 174, 193

Gardener, Re (1909) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Goodyear Dental Vulcanite Co v Smith (1874)
Holmes 354, 364; 5 O.G. 497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Grant v Raymond 31 U.S. 218 (1832) . . . . . . . . . . . . . . . . . . . . . . . . . . . .111, 112, 115, 116, 117
Gray v James 10 F.Cas. 1015 (1817) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 70
Grayson, Ex p 51 USPQ 413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

Hopkins, Ex p 1923 CD 105; 317 OG 238. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Imazio Nursery v Dania Greenhouses 69 F.3d 1560 (Fed. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 198

J.E.M. Ag Supply v Pioneer Hi-Bred 534 U.S. 124 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 171, 181

Kim Bros. v Hagler 167 F.Supp.665; 276 F.2d 259 (9th Cir. 1960) . . . . . . . . . . .175, 185, 198, 199
Knapp v Morss 150 U.S. 221 (1893). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Knight v Baltimore Railroad Co. 3 Fisher 1 (1840) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Kurtz v Belle Hat Lining 280 F. 277 (2d Cir. 1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Latimer, Ex p (1889) Dec.Com. Pat 123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 172, 173

Le Grice, Application of 301 F.2d 929 (CC PA 1962) . . . . . . . . . . . . . . . . . . . . . . 193, 194–6, 205
Le Roy v Tatham 55 U.S. 156 (1852) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
Loom Co. v Higgins 105 U.S. 580 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149, 150
Lowell v Lewis 15 F.Cas. 1018 (1817) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 54, 70
Lundak, Re 773 F.2d 1216 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

Manufacturing Co. v Ladd 102 U.S. 408 (1880) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114, 123

McCormick v Talcott 61 U.S. 402 (1857) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Miller v Brass Co. 104 U.S. 350 (1881). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113, 117
Monsanto Chemical Co. v Coe 145 F.2d 18 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Moody v Fiske 17 F.Cas. 655 (1820) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

National Hollow Brake-Beam Co. v Interchangeable

Brake-Beam Co. 106 F. 693 (1901) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147, 150

xii
 Tables of Cases

Odiorne v Winkley 18 F.Cas. 581 (1814) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 70, 73, 81

O’Reilly v Morse 56 U.S. 62 (1853) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Overhead Door Corp. v Chamberlain Group Inc. 194 F.3d 1261 (1999) . . . . . . . . . . . . . . . . . . 142

Parker & Whipple Co. v Yale Clock Co. 123 U.S. 87 (1887) . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Pennington Seed, Re (US CA, 19 October 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Pennock v Dialogue 27 U.S. 1 (1829) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Phillips v Page 65 U.S. 164 (1860) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Pickering v McCullough 104 U.S. 310 (1881) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 149, 151

Reckendorfer v Faber 92 U.S. 347 (1875) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73, 74, 149

Reissner v Anness 20 F.Cas. 513 (1877). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Risdon Iron & Locomotive Works v Medart 158 U.S. 68 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . 81
Roberts Numbering Mach. Co. v Wetter
Numbering Mach. Co. 54 F.2d 461 (1931). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

Schumacher v Cornell 96 U.S. 549 (1877) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136, 146

Seymour v Osborne 78 U.S. 516 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Silsby v Foote 55 U.S. 218 (18520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Singer v Braunsdorf 22 F.Cas. 196 (1870) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Smith v Bousquet 111 F.2d 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Smith v Merriam 6 Fed.Rep. 713 (1881) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Snow v Lake Shore and Michigan
Southern Railway Co. 121 U.S. 617 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Special Equipment Co. v Coe 324 U.S. 374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 145

Tatham v Le Roy (1852) 2 Blatch. 474 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Thomson, Ex p 24 USPQ 2d 1618 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Topliff v Topliff 145 U.S. 156 (1891) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

University of Rochester v G.D. Searle & Co. 358 F.3d. 916 (2004) . . . . . . . . . . . . . . . . . . . . . . . 43

Van Over, Ex p (1942) 24 J of the Patent Office Society 293 (Board of Appeals). . . . . . . . . . . . . 198

Wells v Jacques 29 F.Cas. 658 (1874) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Whitney v Carter 29 F.Cas.1070 (1810) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 98, 101
Whitney v Emmett 8 F.Cas. 1074 (1831) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Wilcox v Bookwalter (1887) 31 Fed. Rep. 224 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Winans v Denmead 56 U.S. 330 (1854) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82, 83
Winans v New York & Erie Railroad Co. 62 U.S. 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Wollensak v Reiher 115 U.S. 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Yoder Bros. v California-Florida Plant Corp. 537 F.2d 1347 (5th Cir. 1976) . . . . . . . . . . . 175, 198

xiii
 TABLES OF LEGISLATION

NATIONAL LEGISLATION s 13 . . . . . . . . . . . . . . . . . . . . . . . 113, 120

s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
England Patent Act 1839 . . . . . . . . . . . . . . . . . . . . . 92
Statute of Monopolies 1623 . . . . . . . . . . . . 25 Patent Act 1870 . . . . . . . . . . . . . . . . . . . . . 94
s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
France s 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Patent Law 1791 . . . . . . . . . . . . . . . . . . 53, 55 s 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Plant Patent Act 1930 . . . . . . . . . . 6, 153, 154,
United States 156, 157, 158,
160, 161, 162,
Patent Act 1790 . . . . . . . . . . . .5, 6, 53, 54, 97 165, 166, 179,
s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 81 180, 181, 183,
s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 87 186, 196
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 55, 87 s 112 . . . . . . . . . . . . . . . . . . . . . . 184, 191
Patent Act 1793 . . . . . . . . . .6, 14, 54, 97, 111 Plant Variety Protection Act 1970 . . . . . . . 181
s 1 . . . . . . . . . . . . . . . . . . . . . . . . . 81, 131 Revised Statutes
s 2 . . . . . . . . . . . . . . . . . . . . . . . .14, 65, 69 s 4884 (USC title 35, s 40) . . . . . . . . . . 165
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 USC title 35
s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 s 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Patent Act 1832 . . . . . . . . . . . . . . . . . . . . 109 s 101 . . . . . . . . . . . . . . . . . . . . . . . . . . 180
s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 s 112 . . . . . . . . . . . . . . . . . . . . . . . . . . 191
Patent Act 1836 . . . . . . . . . . . . . . . 58, 87, 97,
104, 107, 112, 131, 132
s 6 . . . . . . . . . . . . . . . . . . . . . . . .6, 89, 133

xv
 1
INTRODUCTION

Fabricating the Intangible 1 Eliciting the Invention 11

Inventive Ideas 4 Mechanical Jurisprudence 14
Intangibility 7

Fabricating the Intangible

This book retraces the emergence of the conception of the invention in modern
patent law. Our premise is that the invention in its modern sense emerged in the
course of the eighteenth century, when lawyers and administrators began systemati-
cally to make the distinction between ideas and embodiments, or between the inven-
tion and the material artefact in which it was expressed. This distinction is now
self-evident; it underwrites the commonsense understanding of the invention as a
species of intellectual property. In historical terms, however, the characterization of
the invention as an abstracted idea was far from straightforward. While the notion that
an artefact could embody an idea or express a design was not new to the eighteenth
century, it was only in that period that the notion became a practicable theory. The
evolution of patent doctrine as a technique for eliciting ideas from embodiments pre-
supposed a number of social and technical developments. From these diverse factors,
we wish to highlight three. First, modern ‘patent republics’,1 in which a patent was
construed as the expression of a bargain freely made between the inventor and the
public rather than as a condescension or privilege, and in which the invention was
identified with the disclosure made as part of that bargain, were an effect of new regimes
of political representation and new kinds of governmental rationality. Secondly, the
perception of artefacts as copies of an original, or as castings made from an ideal
template, emerged with the rise of regimes of manufacture and large-scale industry.

1 See Mario Biagioli, ‘Patent republic: representing inventions, constructing rights and authors’

(2006) 73:4 Social Research 1129 and (for the case of France) Gabriel Galvez-Behar, La République
des Inventeurs. Propriété et Organisation de l’Innovation en France (1791–1922) (Rennes: Presses
Universitaires de Rennes, 2008).

Figures of Invention: A History of Modern Patent Law. Alain Pottage and Brad Sherman,
Oxford University Press (2010). © Alain Pottage and Brad Sherman.
DOI: 10.1093/acprof:osobl/9780199595631.003.0001
 Chapter 1: Introduction

Thirdly, and for our purposes most importantly, it only became possible to visualize
and communicate the idea independently of its embodiment when patent lawyers and
administrators had access to the specific material media in which inventions could be
represented; namely, scale models, formalized texts, technical drawings, and archives.
These historical developments settled the conditions in which the distinction
between idea and embodiment became an unquestioned premise of patent doctrine.
That is not to say that the difference between the invention and the material thing
was easy to make. Throughout the nineteenth century patent lawyers tried to fix the
criteria by which one could identify and delimit the idea expressed in a material
artefact or a technological process. The shifting meanings of the term ‘manufacture’
in English patent jurisprudence and the notion of the ‘principle of a machine’ in
US patent law show how difficult it was to apprehend the intangible thing. In work-
ing through these difficulties nineteenth century patent treatises developed a sus-
tained—and in some cases intensely conceptual—account of the nature of the
invention. Nonetheless, all of these theories of the invention started from the
assumption that there really were such things as ideas. In his treatise of 1890,
which claimed to be the first truly scientific treatment of the invention, William
Robinson wrote that the invention existed according to ‘the law of nature’, and that
‘[n]o human legislation, no judicial interpretation, [could] increase, modify, or
diminish its essential characteristics’.2 Few modern lawyers patent would think of
the invention in these abstract terms, largely because pragmatic, technical, and polit-
ical arguments have displaced the theoretical analyses of the nineteenth century. In
part this was because in the course of the twentieth century practical treatises became
law school textbooks, legal theories of the invention were displaced by economic
theories of the functions of patents, and ‘scientific’ questions about the nature of the
invention were eclipsed by normative arguments about the nature of intellectual
property.
Indeed, it may be that over the course of the twentieth century lawyers not only
ceased to think of the invention in ‘scientific’ terms, but that they ceased to think
about the invention at all. Writing in 1933, Emerson Stringham, who was a leading
expert on the drafting and interpretation of patent claims, observed that many law-
yers seemed to be confused as to the real nature of the invention. As he put it:
The difficulty which American courts have had [in conceptualizing the invention]
goes back to the primitive thought that the ‘invention’ upon which the patent gives
protection is something tangible. The physical embodiment or disclosure, which, in
itself is something tangible, is confused with the definition or claim to the inventive
novelty, and this definition or claim or monopoly, also sometimes called ‘invention’
in one of that word’s meanings, is not also something tangible, but is an abstraction.
Definitions are always abstractions. This primitive confusion of ‘invention’ in the

2 William Robinson, The Law of Patents for Useful Inventions (Boston: Little & Brown, 1890), vol 1,

114. We discuss this in more detail in Ch 4.

2
 Fabricating the Intangible

sense of the physical embodiment with ‘invention’ in the sense of definition of the
patentable amount of novelty, survives to the present day, not only in the courts, but
among some of the examiners in the Patent Office.3

Perhaps this confusion was not the result of ‘primitive thought’ but a consequence of
the fact that modern patent lawyers so rarely ask the question: what is the invention?
Instead of asking that question directly, they are more likely to ask what types of
subject matter should be protected, or how the scope of patents should be regulated.
Although the requirements for patentability do not include a discrete requirement
that applicants be able to show that they have created an invention, it is clear that the
invention occupies a pivotal place in patent law. Yet, patent lawyers approach the
invention only obliquely, and from different perspectives. For example, a tribunal
might seek to recreate the process by which the invention came into existence, either
to determine which one of a number of competing applicants is entitled to patent the
invention, or to determine whether the invention was obvious; it might look back to
the time when the invention was created in order to determine novelty; or, it might
ask whether a particular artefact or process constitutes an infringement of a patented
invention.
These different doctrinal approaches to the invention can be seen as different perspec-
tives on the process by which inventions come into being. The question of obvious-
ness, for example, relates to the moment of creation while the question of infringement
relates to the results of that process. What is the gist of this implicit theory of creation?
In the next chapter, we suggest that the basic premise is the paradigm of industrial
manufacture. Figuratively, the invention is imagined as a template from which a suc-
cession of identical artefacts might be reproduced, and creation is the process of
developing and fixing this (ideal) mould or template. As we explain throughout our
study of particular figures of invention, this abstract template has been rendered in
very different (but overlapping) terms: as a recipe for making a thing, as the intangible
but fixed form or design of a thing, or as the instrumentality 4 effected by a thing.
Depending on which of these variations was used to characterize the invention, one
could make different arguments as to the ‘principle’ or ‘mode of operation’ of a
mechanical invention, and as to whether the use of an accused artefact was or was not
an infringement. While patent doctrine assumes that there is such a thing as the
invention, it avoids any precise definition of that thing. Perhaps, then, the confusion
noticed by Stringham is actually a productive adaptation: the equivocation between
different senses of ‘invention’ allows lawyers to develop a more responsive set of
resources for addressing the economic and social complexities of innovation. And
they can do so without asking the conceptual question—what is the invention?—
precisely because the question has already been answered at the level of practice.

3 Emerson Stringham, Double Patenting (Washington: Pacot Publications, 1933), 209.

4 For an extended discussion of instrumentality, see Ch 4.

3
 Chapter 1: Introduction

Inventive Ideas
Political justifications and critiques of modern patent law often begin with an old
question: what kind of right can one have in an idea? Taking up Thomas Jefferson’s
famous observation that ideas are ‘like fire, expansible over space, without lessening
their density in any point, and like the air in which we breathe, move, and have our
physical being, incapable of confinement or exclusive appropriation’,5 modern pat-
ent lawyers often construe patents as monopolies rather than property rights. In this
sense, intellectual property is an oxymoron. Whatever label we might use, the idea
that patents provide a right to exclude only makes sense if there is an object that
can be possessed to the exclusion of others. But ideas are non-excludable and non-
rivalrous: any number of people can possess the same idea at the same time, and no
person’s possession is diminished by the enjoyment of others. As a result, patent law
has to fictionalize scarcity. The law creates the fiction of an excludable thing by
enjoining competitors from specific uses of an idea that would otherwise be open to
all. Jefferson concluded from this that intellectual property was necessarily ‘a tempo-
rary state-created monopoly given to encourage further innovation’.6 Jefferson’s let-
ter on intellectual property, which was written in 1813, has been canonized as a
founding document of the modern patent republic. Because it so expressively high-
lights the difference between a right in a material thing and a right in an idea, and
because it restricts the justification of intellectual property rights to what is necessary
to ‘harness the genius of both the market and democracy’,7 Jefferson’s letter is a pow-
erful manifesto for campaigns against the enclosure of the public domain. Although
the Thomas Jefferson who is invoked in modern arguments might at first be some-
what bemused by discussions of open source licensing, copy lefting or remix culture,
he would soon recognize the normative principles and legal forms that underwrite
the contemporary politics of patent law. These normative and political debates,
which ask what kind of rights one can have in ideas, have effectively eclipsed the
question of what kinds of things ideas are in the first place.
The distinction between idea and embodiment has become a central article of
faith of patent doctrine. The proposition that patents relate to ideas and that ideas
exist as intangible things is simply too obvious to require any explanation. From a
historical perspective, however, this is precisely what is called for. The doctrinal
understanding of ideas as things, as forms that exist independently of their embodi-
ments, is far from self-evident. From the ancient Greeks onwards philosophers have
asked whether there can be such things as abstract objects, things such as generic

5 Thomas Jefferson, The Writings of Thomas Jefferson, vol 13, 328, available at: <http://

www.constitution.org/tj/jeff13.txt>.
6
James Boyle, The Public Domain. Enclosing the Commons of the Mind (Yale: Yale University Press,
2008), 21.
7 Ibid, 9.

4
 Inventive Ideas

properties (eg whiteness) or universals (eg human nature). Rather like the invention,
these forms cannot exist materially because they are realized in many things at the
same time; so, like the invention, they subsist in some dimension of reality other than
that occupied by the things in which they are instantiated. Philosophers recognize
that the existence of such things cannot be taken for granted. Patent lawyers, on the
other hand, routinely deal with the invention as though the reality of embodied
forms was entirely self-evident. Lawyers ask what kinds of ideas should be patent-
able, but this is usually framed as the question whether an idea has been sufficiently
transformed, embodied, or applied as to become something more than, for example,
a mere scientific principle or a product of nature. The basic premise is that ideas—
whether pure or applied—can indeed subsist as intangible things. We ask what social
and economic conditions, technical developments, and doctrinal themes conspired
to foster the assumption that in identifying the proper referent of a patent claim or
specification patent lawyers are dealing with the two-dimensional representation of
an existent but intangible object.
In developing these questions we focus on the history of patent law in the United
States, roughly from the beginning of the nineteenth century through to the latter
part of the twentieth century. The United States Patent Act of 1790 established the
charter of what was perhaps the first truly modern patent regime. While patent juris-
prudence in England was struggling to forge a modern patent law from the concep-
tual legacy of the old system of privileges, patent lawyers in the United States were
able to begin afresh with a theory of patent law that was based on contract rather than
privilege:
Formerly, in England, courts of law were disposed to indulge in a very close and strict
construction of the specifications, accompanying patents, and expressing the nature
and extent of the invention. This construction seems to have been adopted upon the
notion, that patent rights were in the nature of monopolies, and, therefore, were to be
narrowly watched, and construed with a rigid adherence to their terms, as being in
derogation of the general rights of the community. At present a far more liberal and
expanded view of the subject is taken. Patents for inventions are now treated as a just
reward to ingenious men, and as highly beneficial to the public, not only by holding
out suitable encouragements to genius and talents and enterprise; but ultimately
securing to the whole community great advantages from the free communication of
secrets, and processes, and machinery, which may be most important to all the great
interests of society, to agriculture, to commerce and to manufactures, as well as to the
cause of science and art. In America this liberal view of the subject has always been
taken; and, indeed, it is a natural, if not a necessary result, from the very language and
intent of the power give to congress by the constitution on this subject.8

This ‘liberal’ theory of the patent right focused attention on the patent specifica-
tion as the means by which the bargain between the inventor and the public was
made, and hence on the idea that was held in a specification: ‘the secret process of

8 Blanchard v Sprague 3 F Cas 648, 649–650 (1839).

5
 Chapter 1: Introduction

making the thing, the intellectual property and knowledge’.9 And, at a time when
English patent jurisprudence was still trying to turn the statutory reference to
‘manufactures’ into a name for the invention as an intangible form or principle,10
the United States Patent Acts of 1790 and 1793, which organized patentable sub-
ject matter into a set of categories and focused attention on the invention as ‘the
principle of a machine’ made this process of abstraction easier.11 Because industrial
manufacture did not become established in the United States until the 1840s, pat-
ent lawyers in the first part of the nineteenth century remained focused on
machines, and the jurisprudence of invention mobilized material form in some
idiosyncratic ways.
At the other end of our historical frame, the decisions of the Supreme Court in
Diamond v Chakrabarty12 and Diamond v Diehr13 concentrated attention on the
patentability of engineered organisms and software. These questions were signifi-
cant not only because they unsettled the old doctrinal paradigm of mechanical
invention but also because they inaugurated a new and more intensive politics of
patent law, which focused on the enclosure of the scientific commons, the privati-
zation of science, and the proper mission of patent law.14 The technicalities of
patent law and bureaucracy became a matter of broad political concern. Some of
these issues emerged in debates about the patentability of biological inventions in
the 1930s and 1940s, and conceptual and procedural adjustments made at that
time facilitated the recognition of biotechnological inventions fifty years later.
Although the 1930 Plant Patent Act came into being in part because its supporters
made a strong analogy between plant breeders and mechanical or chemical
inventors, the Act was interpreted by decisions that introduced a novel conception
of invention, which in Ch 8 we characterize as ‘inductive’ (as distinct from

9 George Ticknor Curtis, A Treatise on the Law of Patents for Useful Inventions (Boston: Little &

Brown, 1849), 3–4.

10
See our discussion of Boulton & Watt v Bull in Ch 4.
11 The Patent Act of 1790 referred to ‘any useful art, manufacture, engine, machine, or device,

or any improvement therein not before known or used’ (Patent Act of 1790, Ch 7, 1 Stat 109–112
(10 April 1790), s 1), which by 1836 had become ‘any new and useful art, machine, manufacture, or
composition of matter’ (Patent Act of 1836, Ch 357, 5 Stat 117 (4 July 1836), s 6).
12
447 US 303 (1979).
13
450 US 175 (1981).
14
See eg ‘The United States Court of Appeals for the Federal Circuit, entrusted by Congress to
manage the patent system, has deliberately remoulded that system to protect investment as such,
rather than discontinuous technical achievements that elevate the level of competition. The patent
system has accordingly degenerated to protecting incremental slivers of know-how applied to indus-
try, including the very business methods that were formerly the building blocks of the free-enterprise
economy’ (Keith E. Maskus and Jerome H. Reichman (eds), ‘The globalization of private knowledge
goods and the privatization of global public goods’ in idem (eds), International Public Goods and
the Transfer of Technology Under a Globalized Intellectual Property Regime (Cambridge: Cambridge
University Press, 2005), 21. It is also argued that patents on business methods are particularly
problematic because, unlike many patents, are not sector specific—they are tools used in almost all
kinds of commercial activity (see generally John W. Bagby, ‘Business Method Patent Proliferation:
Convergence of Transactional Analytics and Technical Scientifics’ (2000) 56 Business Lawyer 423.

6
 Intangibility

‘originating’) invention. In dealing with these inductive inventions, patent law

paved the way for the practice of disclosing biological inventions by means of
deposits of living materials. Whereas in the case of a mechanical invention one had
to disclose how one could produce a particular instrumental effect by combining
simple components or materials, in the case of biological inventions one had only
to show how one could produce an instrumental effect by intervening in an organ-
ism whose structure and mode of functioning could neither be understood nor
disclosed. A full doctrinal history of biotechnology patents would have to include
an account of how this practice evolved and how it was ratified by patent examiners
and the courts. The example of the first plant patents is also instructive because it
reveals the equivocal role that the paradigm of the machine plays in debates about
new kinds of inventions. Although the figure of the machine is taken as a limiting
and largely outdated paradigm, many arguments for the patentability of software
inventions effectively take mechanical form or mechanical agency as a figure that
has to be translated into the medium of code or information.15 In turning to the
future, patent jurisprudence still mobilizes the old distinctions between tangible
and intangible, idea and artefact, or discovery and invention.
It is not easy to explain how an assumption came into being, especially when that
assumption still governs what can be said about the phenomenon in question. For
many patent lawyers the approach that we develop in this introduction will be some-
what foreign:16 it mobilizes conceptual and historical perspectives that are not in the
usual repertoire of intellectual property scholarship, and it largely bypasses the eco-
nomic and political theories that have become orthodox in intellectual property
scholarship. The question we ask, however, is eminently practical: how was the
abstract form of the invention made real in the courtroom?

Intangibility
Intangibility is a figment.17 There is no intangible or immaterial dimension of reality
in which inventions might subsist independently of the artefacts, texts, or drawings
from which they are elicited. The things that are taken to be intangible objects
are generated and sustained by real-world acts of representation, interpretation,
and argumentation. They are an effect of communicative action rather than

15
Shown clearly in the Bilski litigation.
16 This was not always so. The bibliography of Emerson Stringham’s voluminous Patent Claims.
A Drafter’s Manual (Madison WI: Pacot Publications, 1939) brings together the works of Aristotle,
Bentham, Berkeley, A.C. Bradley (the English Hegelian), John Dewey, Freud, Korzybsti (the founder
of general semantics), Pavlov, C.S. Pierce, and Alfred North Whitehead. It is true that these references
are little more than ornamental additions to an otherwise conventional (if idiosyncratically expressed)
analysis of patent claims, but they were nonetheless familiar to the author.
17 In the etymological sense of ‘something moulded or fashioned’, derived from the Latin fingere,

to ‘feign or to fashion’ (Oxford English Dictionary, online edition, sv ‘figment’).

7
 Chapter 1: Introduction

spectral physics. Yet, for at least two centuries intellectual property lawyers have
talked as if ideas existed in some virtual or spectral plane of reality, and this fiction
has been instituted as the major (but suppressed) premise of doctrinal expositions of
the principles and criteria that determine what kinds of things qualify as patentable
inventions and the basis of normative justifications of the modern patent regime.
Patent lawyers assume that the formalized language of the modern patent claim
represents an existent thing;18 in infringement actions they assume that it is really
possible to distinguish two ideas as though one were distinguishing between objects
that exist in the world; in scrutinizing the patent specification to ascertain whether
the invention has been properly disclosed they assume that the specification does
indeed hold an idea that that can be reproduced by the skilled reader.
Legal doctrine has common sense on its side: what is so improbable about the
assumption that ideas can be held in the head, inscribed in text, expressed in pictures
or formulae, or communicated from one mind to another? What is so problematic
about the notion that ideas and concepts can be communicated from one medium
or mind to another in essentially identical form? While philosophers ask whether
these forms have the quasi-material qualities that allow them to subsist in these ways,
this question is, precisely, philosophical. Few mathematicians actually need to
understand mathematics reflexively, in terms of the language games, syntactic con-
ventions, and material practices that sustain processes of reasoning.19 Similarly, few
patent lawyers really need to understand the nature of the relationship between the
tangible and intangible dimensions of the patented invention.20 As such, they might
see questions about the existence of the invention as a theoretical rather than a practi-
cal question. From a conceptual perspective, however, these are precisely the types of
issues that call for explanation. Our approach is neither doctrinal nor philosophical.
If the invention were what lawyers imagine it to be then one would indeed have to
address philosophical questions about how form subsists within matter, taking
materiality or tangibility as the eminent mode of existence.21 But the distinction

18
But see Emerson Stringham, on the question whether the claims or the element of a claim is
essential, or whether the ‘gist’ or ‘pith’ of the invention: ‘The effect upon Western culture of the discov-
ery that “essential reality” is a human concept having no foundation in the external world, cannot yet
be predicted. The discovery is only slowly filtering into our consciousness. When the dust has cleared
we shall still have “essential reality” but we shall recognize it as something to be repeatedly picked
and chosen and discarded, simply as seems convenient from time to time’ (Patent Claims. A Drafter’s
Manual (Madison WI: Pacot Publications, 1939), 32). We do not entirely share Stringham’s realist
premises.
19 On the use of models in mathematics see Herbert Mehrtens, ‘Mathematical models’ in Soraya

de Chadarevian and Nick Hopwood, Models. The Third Dimension of Science (Stanford: Stanford
University Press, 2004), 276.
20 There is an irony here: not least because questions about the consistency of ‘intangible things’

or ‘ideas’ can only be externalized because patent lawyers have already made the leap of faith that is
involved in treating the invention as an intangible form.
21 A somewhat extreme version of this approach was taken by the fourteenth century English

philosopher William Crathorn, who argued that cognitive representations of sensible qualities were

8
 Intangibility

between form and matter, or between tangible and intangible, is referable to an

observer and a specific apparatus of observation.22 As we go on to explain, the differ-
ence between idea and embodiment is an effect of interpretation, and interpretations
are artefacts of representational and communicative practices. As such, when we talk
about the emergence of the modern conception of invention we focus less on the
doctrinal category of invention as such and more on the media and techniques that
bring the referent of this category into being.
For some time now the social study of science has been developing a theoretically and
empirically rich perspective on the fabrication of the very things that are central to
patent jurisprudence: scientific and technical artefacts—things and concepts. The
commonsense representation is of scientists as ‘disembodied intellects making
knowledge in a field of facts and observations’,23 but the reality is that knowledge
does indeed have to be made, and making means recruiting the material media,
instruments, and inscriptions that frame, culture, manipulate, and record objects of
study. And, whereas the commonsense understanding of science takes these things
and instruments as the means by which scientists represent natural phenomena, as
relays between word and world, the crucial insight of social studies of science is that
cognitive tools do not function instrumentally. There is no division between word
and world that has to be bridged by an improbable leap of correspondence, only
what Bruno Latour calls a ‘chain of reference’:24 a series of specific transformations in
which one avatar of the object of study is transformed into another through a succes-
sion of texts, diagrams, and instruments. When a botanical specimen is plucked
from a forest habitat it represents the host of plants that make up the species; it is
(re)located in its habitat by means of maps and topological diagrams that allow the
botanist to compare specimens from different sectors or to return to take further
samples; in the process of becoming a specimen the plant is preserved, tagged, and
transported to a laboratory, where it can then be compared to specimens taken from

literally like the things they represented: when the mind cognized the ‘whiteness’ of a thing the tissues
of the brain itself would become white, and, similarly, the mental conception of non-sensible things
was a likeness of the material form of the written or spoken words that were conventionally used to
name those things. See Robert Pasnau, Theories of Cognition in the Later Middle Ages (Cambridge:
Cambridge University Press, 1997), 89–100.
22
See generally Niklas Luhmann, Social Systems (Stanford: Stanford University Press, 1995).
23 Andrew Pickering, The Mangle of Practice. Time, Agency & Science (Chicago: Chicago University

Press, 1995), 6.
24
‘Philosophers fool themselves when they look for a correspondence between words and things as
the ultimate standard of truth. There is truth and there is reality, but there is neither correspondence
nor adequatio. To attest and guarantee what we say, there is a much more reliable movement—indi-
rect, cross-wise, and crab-like—through successive layers of transformations. At each step, most of the
elements are lost but also renewed, thus leaping across the straits that separate matter and form’. Bruno
Latour, Pandora’s Hope. Essays on the Reality of Science Studies (Cambridge MA: Harvard University
Press, 1999), 64.

9
 Chapter 1: Introduction

thousands of miles away or collected years earlier; the results of these observations
might then generate inferences that can be written up in scientific papers, which
might in turn be confirmed, elaborated, or superseded by another theory which
depends on a reconstruction of the chain of reference.25
Are these processes of (re)materialization not just ways of bringing words into cor-
respondence with the world? Of course, ‘something’ is being transferred, but that
something is not a more or less accurate image of the world, a referent that is chan-
nelled through a succession of media, magically retaining its original sense and
essence. Rather, it is an effect that emerges from the series of transformations under-
gone by the plant: ‘in practice one never travels directly from objects to words, from
the referent to the sign, but always through a risky intermediary pathway’.26 The
terms of scientific knowledge—word and world, propositions and things—are not
given in advance; they emerge from the contingent ways in which these intermediary
pathways are put together. What one can see and manipulate is only what the ‘risky’
construction of a chain of reference allows one to see and manipulate. At each knot
in the chain one kind of form is translated into another—a terrain becomes a two-
dimensional diagram or map, a living organism becomes a laboratory specimen—
and each of these transformations depends on one’s ability to fabricate and hold
steady a specific assemblage of human and material agency. These constructions are
risky because material things have their own agency; things are difficult to work
with, not because their constitutive mechanisms are opaque, difficult to elucidate, or
resistant to control, but because things do not act or respond as instruments or
mechanisms. Things often surprise their would-be masters; things can be invested
with human designs, but they often take on these designs in ways that recursively
change the sense of what the project or design actually was. So things ‘irritate’ or
‘inflect’ the action of their human interlocutors. Action is a property neither of
humans nor of things, but of the engagement between them.27 The point is not that
these risky chains of reference are apt to come undone abruptly, but only that refer-
ence seems stable, practicable, and predictable because we externalize the ongoing
work of fabrication that is involved in keeping these connections open. A chain
of reference is like an electrical current or electromagnetic field;28 so long as the
current or field remains unbroken knowledge remains in the making, but the work
of fabrication is what keeps things going.

25
‘The plants find themselves detached, separated, preserved, classified, and tagged. They are
then reassembled, reunited, redistributed according to entirely new principles that depend on the
researcher, on the discipline of botany, which has been standardized for centuries, and on the institu-
tion that shelters them, but they no longer grow as they did in the great forest’. Ibid, 39.
26 Ibid, 40.
27 ‘Thought is seized, modified, altered, possessed by nonhumans, who, in their turn, given this

opportunity by the scientists’ work, alter their trajectories, destinies, histories’. Ibid, 282.
28 ‘Truth-value circulates here like electricity through a wire, so long as this circuit is not broken’.

Ibid, 69.

10
 Eliciting the Invention

Although our approach diverges quite markedly from that of science studies, mainly
because we treat patent law as a medium of communicative action rather than mate-
rial inflections,29 the analogy gives a good sense of what we mean by a ‘figure of
invention’. Rather like a chain of reference, the material and semantic assemblages of
patent jurisprudence are fabrications that make the invention visible and tractable,
and the contingent ways in which these assemblages are constructed condition how
and what appears as the invention.

Eliciting the Invention

One legacy of the Jeffersonian story of intellectual property, and of the equivocal way
that the story was received in the leading patent treatises of the nineteenth century,
is that orthodoxy in intellectual property scholarship still hesitates as to whether the
invention (or intellectual property in general) should be called ‘property’. One view
is that although ideas are (naturally) non-excludable and non-rivalrous they can
nonetheless be framed as objects of property: ‘The law takes an intangible thing and
builds around it a property structure modeled on the structure which social and legal
systems have always applied to some tangible things’.30 Another view, not necessarily
inconsistent with the first, is that patents are monopolies rather than property rights;
instead of having an absolute or open-ended right of usus and abusus in relation to the
invention, the holder of a monopoly only has a limited set of exclusive rights relating
to the making, sale, or use of the invention. These questions matter less to us than the
more basic point that patent lawyers routinely construe the invention as a thing; or,
more important, they routinely handle, scrutinize, and transact the figures in which
the invention appears as if they were dealing with a thing. Indeed, the irony is that
although intellectual property is cast as a fictional analogue of property in tangible
things, there is a sense in which patent law is more materialist than the paradigm on
which it is modelled. Whereas most disputes over material things concern the form of
a transaction or the conduct of persons in relation to things, patent infringement
actions typically turn on intensely detailed arguments about the material composition

29
Of course, the media of patent law are very different from those of science; instead of a repertoire
of such things as electrophoresis gels, spectrometers, electron microscopes, or even the relatively sim-
ple technologies that are involved in turning a plant into a representative botanical specimen, law has
only texts and speech. In his ethnological account of proceedings in France’s Conseil d’Etat, Latour
observes that law is quite unlike science because it has no technologies of its own: ‘[E]ven the most
humble technology—a lamp, an ashtray, a paperclip—mingles periods, places, entirely heterogene-
ous materials, folds them into a single black box, and prompts those who use it to act by inflecting
their course of action. Law is not capable of doing this. It is the least technological [technique] of all
forms of enunciation’. Bruno Latour, La fabrique du droit. Une ethnologie du Conseil d’Etat (Paris: La
Decouverte, 2002), 293.
30 J. W. Harris, Property and Justice (Oxford: Clarendon Press, 1996), 44. Harris goes on to say that

‘intellectual property was created historically always in societies in which advanced property institu-
tions over tangible resources were entrenched, and, to varying degrees, absorbed the existing mental
frameworks of those institutions’. Ibid, 47.

11
 Chapter 1: Introduction

of an artefact or process. Legal argument opens out the material form of the artefact,
breaking it down it into elements and functions that are then recombined in such a
way as to distinguish the ‘principle’ of one device from that of another. Of course this
is materiality at a remove. As we have observed, patent litigation does not address
material artefacts as such, and when it purports to return to materiality it always does
so through essentially textual chains of reference.31 But the object of argument is still
to anatomize the material form and properties of a thing.
A patent secures the right to control the use and reproduction of the idea rather
than the material artefact in which it is embodied. As the same idea can often be
expressed in different forms, many infringement actions turn on the question of
whether two seemingly dissimilar artefacts embody the same idea, rather than
whether the patented invention and the allegedly infringing artefact are materially
identical. This is where things become complicated. The intangible invention is not
a hidden structure that can be disclosed in the way that a radiographic image reveals
hidden tissues. In patent doctrine the relation between the invention and the
embodiment is imagined as a relation between form and matter: the invention is a
template, an immaterial design or principle that shapes the external form and func-
tionality of the material embodiment. The old distinction between form and matter
is as elusive as it is evident.32 For centuries it was assumed that artefacts and organ-
isms were shaped or informed by an inner principle or design but in practice this
form could be reached only by scrutinizing the observable features of the thing. As
a result the term itself became equivocal: form could be taken either as the inner
architecture of an artefact or organism or as its manifest shape.33 Form and matter
were distinct but indistinguishable; or, rather, the difference between form and
matter was an effect of how the thing was observed and deciphered. The same is true
of the invention. While the intangible and tangible dimensions of the invention are
distinct, at the same time they are also intrinsically linked. The invention is imma-
nent in its embodiment; it is only manifested in the material shape, configuration,

31
‘Modern patent disputes rarely engage the materiality of the invention because they have
become, in effect, contests of textual interpretation over competing patents. Similarly, issues of patent
priority are settled by going back to dates and signatures in laboratory notebooks and written affida-
vits, but only rarely to things’. Mario Biagioli, ‘Patent republic: representing inventions, constructing
rights and authors’ (2006) 73:4 Social Research 1129, at p 1145.
32
Kant observed that these ‘two concepts underlie all other reflection, so inseparably are they
bound up with all employment of understanding. The one (matter) signifies the determinable in gen-
eral, the other (form) its determination’. As cited in Norma J. Emerton, The Scientific Reinterpretation
of Form (Ithaca: Cornell UP, 1984), 20.
33 The equivocation originates in Aristotle’s conception of the form/matter relation, which turned

on the notion of potentiality. For Aristotle, matter was not just a mute medium into which form was
impressed or infused; even before it was formed into an artefact or organism matter already tended
towards its actualization. One could say that the finished form of an organism or artefact was already
potentially, or virtually, present in its material substance. Form was actualized only in its material
expressions or embodiments, and matter could be identified only in the guise of some form. For
commentary, see Bernadette Bensaude-Vincent, Eloge du mixte. Matériaux nouveaux et philosophie
ancienne (Paris: Hachette, 1998).

12
 Eliciting the Invention

and operation of a material artefact or process. It is the material embodiment seen

from a particular perspective.
Our argument is based on the idea that the things that are taken to be intangible
objects are generated and sustained by real-world acts of representation, interpreta-
tion, and argumentation. As William Robinson put it in 1890, ‘[t]he actual opera-
tions which have taken place in the mind of the inventor are not open to enquiry.
Concerning these he alone has any personal knowledge, and even his impressions are
often vague and unreliable. The invention must, therefore, speak for itself ’.34 Because
inventions have to be elicited from material embodiments, the invention only speaks
‘for itself ’ through the material features and observable movements to which patent
discourse ascribes legal significance. The intangible is only visible in the material
shape, configuration, and operation of a material artefact or process where it reveals
itself. In that sense material embodiments are like texts; they have to be deciphered,
interpreted, and ascribed a meaning. And, as in the case of a text, interpretation is a
thoroughly constructive process: ‘interpretive strategies are not put into execution
after reading; they are the shape of reading, they give texts their shape, making them
rather than, as is usually assumed, arising from them’.35 As lawyers are well aware,
meaning is not simply uncovered. In one sense, representation and interpretation are
effects of doctrinal argument; the invention is defined by arguments that mobilize
criteria such as novelty, non-obviousness, or adequacy of disclosure. But these argu-
ments depend on the ability of lawyers to refer to and manipulate the features of the
invention, which in turn depends on the tacit conventions and implicit skills involved
in communicating about and through the material media in which the invention is
represented, and, ultimately, on the texture of these material media themselves. But
for these media—paradigmatically the patent specification—doctrinal argument
would have no objects, nothing to talk about. If, as late nineteenth century patent
lawyers assumed, the patent claim is like a map of land36, we are interested in the

34 William Robinson, The Law of Patents for Useful Inventions (Boston: Little & Brown, 1890),

vol 1, 157.
35
Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge
MA: Harvard University Press, 1980), 13. ‘interpretation is the source of texts, facts, authors, and
intentions. Or to put it another way, the entities that were once seen as competing for the right to
constrain interpretation (text, reader, author) are [the] products of interpretation’. Ibid, 16.
36
The author of a pair of companion articles published in the Journal of the Patent Office Society of
1945 and 1948 tried to make this point by introducing patent lawyers to developments in the theoreti-
cal field of semantics. The central theme was the relation between words and things, and the standard
representation of the claim as a map of the invention: ‘[I]nstead of reacting ‘as if ’ the words are the
phenomena they are only supposed to symbolize, we should realize that they are only as maps are to
the actual territory. The map is not the same as the territory’ (Cecil C. Kent, ‘General semantics and
the patent system’ (1945) 27 J of the Patent Office Society 37, at p 40). ‘[W]e can, and often do, gener-
ate speech structures which have no correspondence with anything of a similar structure in the real
and non-verbal world. In other words, we can construct verbal maps which do not correspond to the
real territory as silently observed’ (Cecil C. Kent, ‘Semantic flaws in the patent laws’ (1948) 30 J of the
Patent Office Society 416, at p 418). In this article, Kent acknowledged (or claimed) a certain exclusivity:
‘The whole field is very new. Dr Emerson Stringham and late Harold E. Potts in England, are the only

13
 Chapter 1: Introduction

means by which this map is produced, the medium in which it is inscribed, the con-
ventions that control its interpretation, and the techniques that lawyers use to relate
the map to the territory. To explain how the invention is produced and held steady,
we do not need a philosophical theory about the existence of abstract objects or
generic properties, so much as a material theory of how the invention is distin-
guished from its embodiment and how that specific distinction is recorded, com-
municated, and sustained. Instead of assuming that the invention has some
phantom-like existence that enables it to circulate intact through a number of
cognitive and communicative transactions, we start from the premise that these
transactions are what constitute and sustain the invention in the first place.

Mechanical Jurisprudence
Throughout the nineteenth century patent lawyers in the United States tried to
develop specific rules for the interpretation of material embodiments. The central
case was the machine.
For Thomas Jefferson and his cohorts, a piece of technology was readily identifiable;
it had substance, and moving parts, and did something in the practical world of farm-
ing or manufacturing. At the very least, for Jefferson, if you put technology in a bag
and shook it, it would make some noise.37

Most litigated patent disputes in the first part of the century concerned mechanical
devices: Eli Whitney’s cotton gin,38 nail-cutting machines,39 a water pump,40
machines for winding cloth or roping cotton,41 a paper-making machine,42 Thomas
Blanchard’s wood-turning machinery,43 and Oliver Evans’s automated mill.44 The
Patent Act of 1793 identified mechanical inventions with the ‘principle’ of a machine
and stipulated that ‘simply changing the form or proportions of any machine . . .
shall not be deemed a discovery’.45 Therefore, many infringement actions turned on
the question whether apparent differences in material form or configuration had
been introduced so to disguise a principle that was substantially identical to that of a

persons to my knowledge who apart from myself in Patent literature have had anything to say about
Semantics and logical positivism’. Ibid, at p 417–18.
37
Robert P. Merges, ‘As Many as Six Impossible Patents Before Breakfast: Property Rights for
Business Concepts and Patent System Reform’ (1999) 14 Berkeley Technology L J 577, at p 585.
38
Whitney v Carter 29 F Cas 1070 (1810).
39
Odiorne v Winkley 18 F Cas 581 (1814), Gray v James 10 F.Cas. 1015 (1817).
40
Lowell v Lewis 15 F Cas 1018 (1817).
41
Barrett v Hall 2 F Cas 914 (1818) and Moody v Fiske 17 F.Cas. 655 (1820), respectively.
42
Ames v Howard 1 F Cas 755 (1833).
43
Blanchard v Sprague 33 F Cas 648 (1839).
44
Evans v Eaton 20 US 356, 433–434 (1822).
45
Patent Act 1793, Ch 11, 1 Stat 318–323 (21 February 1793), s 2.

14
 Mechanical Jurisprudence

patented invention. According to an influential decision from the early nineteenth

century:
the principles of two machines may be the same, although the form or proportions
may be different. They may employ substantially the same power in the same way,
though the external mechanism be apparently different. On the other hand, the prin-
ciples of two machines may be very different, although their external structure may
have great similarity in many respects.46

This was where the indeterminacies of the old form/matter distinction surfaced.
Although material form was all one had to go on, outer form was an equivocal if not
deceptive index to inner form (the idea). In Ch 4 we develop a fuller account of the
difficulties involved in identifying the ‘principle’ of machine, and we trace the pro-
cess by which the invention came to be defined as the ‘idea of means’, and identified
with the observable performance of a machine. Here, however, we are concerned
with the sense in which the form of the machine shaped the ways in which nine-
teenth century patent jurisprudence elicited the invention from its embodiment.
It is a trite point that early United States patent jurisprudence was adapted to the
form of the machine. But what is meant by adaptation? The most straightforward
answer is that the doctrinal sense of the invention was modelled on the paradigm of
the machine: inventions were things that looked or worked like machines. The para-
digm could be extended to electrical and chemical inventions because these had
something like the qualities of materiality and instrumentality that patent doctrine
ascribed to machines. More improbably, perhaps, the figure of the machine was
mobilized in 1930s and 1940s to rationalize the patentability of plant inventions. It
was more difficult, however, to adapt the paradigm of the mechanical invention to
software inventions, which function in the medium of information rather than
energy. If the criteria of invention are seen only as instruments, as means to an end,
then the obvious remedy is to revise the subject matter limitations, or simply to dis-
solve them into a broad requirement of novelty,47 and from there develop a jurispru-
dence of informatic inventions. Throughout this book we explore a different
dimension of adaptation. The legal form of the invention is both end and means,
both the thing and the means of producing that thing, and the archetype of the
machine can be found in both registers. The form and agency of the machine also
informed the material techniques and tacit conventions that elicited the invention
from the embodiment. Patent jurisprudence itself was mechanical, not in the sense
intended by Roscoe Pound’s critique of formalism,48 but in the sense that mechanical
form became a medium of legal technique.

46
Barrett v Hall 2 F Cas 914 at 923 (1818).
47
As in Diamond v Chakrabarty, 447 US 303 (1979).
48
For Pound mechanical jurisprudence was a theory that ‘judge[s] rules and doctrines by their
conformity to a supposed science and not by the results to which they lead’. Roscoe Pound, ‘Mechanical
jurisprudence’ (1908) 8 Columbia L Rev 605, at p 608.

15
 Chapter 1: Introduction

In explaining this we begin with a straightforward historical observation: in the for-

mative period of the United States patent regime machines were not just the focal
objects of patent law, they were also the basic means that patent lawyers used to rep-
resent, elaborate, and argue their claim to an invention. At all levels of patent litiga-
tion, from circuit courts up to the Supreme Court, models took centre stage in
infringement actions. Models were the means that made machines comprehensible
to jurors and judges. In Ch 6 we cite the observation of a former Commissioner of
Patents that most judges could not read engineering drawings—‘there is not to
exceed one in five, at most, and probably not so large a proportion, of our best judges
on the bench who get any just conception of a machine by the drawing’—and that
for this reason the only way to secure an understanding of the ‘principle’ of a machine
was by way of a practical demonstration of a certified copy of the Patent Office
model.49 The paper specification and patent drawings were at once brought to life in
and eclipsed by demonstrations of patent models. There were two sides to any patent
dispute, and each side drew on demonstrations of patent models to advance its
own arguments and counter those of the opposition. So models were tools of legal
argument: they demonstrated the material features or operations of two competing
embodiments—the ‘senior’ invention and the alleged infringement—in such a way
as to reveal the ‘principle’ of each, and depending on the intent of the demonstration
these principles would be either distinguished or identified.
What was the effect of representing a machine in a scaled-down copy of itself ? At first
sight the model was just a convenient means of bringing embodiments into the
courtroom in a portable and more tractable form. Most infringement actions turned
on arguments about the legal significance of mechanical features, so those features
had to be represented or evidenced in some way. But precisely because it was taken
as a representation the model was a very different thing from the machine that it was
supposed to evidence. Although the dimensions of patent models were not standard-
ized, the effect of scale reduction was that a model could be set on a table, pointed at
from any aspect, picked up, rotated, or upended so as to display a point of interest to
a particular audience within the courtroom, and, if need be, brought to the bench or
the jury so as to facilitate close inspection. In other words, the three-dimensional
form of the model was drawn into the choreography of a demonstration, the object
of which was to point out those features of the embodiment in which the invention
was manifested, and to highlight those features which either distinguished or
identified two competing embodiments. The model became the medium in which
the embodiment was anatomized and interpreted. Here, we should recall what is
involved in interpretation. Because ideas are immanent in their embodiments the
difference between idea (form) and embodiment (matter) is an artefact or effect of
demonstration and argument. The invention was brought into being by processes of

49 See Arguments before the Committee on Patents (3 April 1878), 45th Congress, 2d Session Misc

Doc 50, 99–100.

16
 Mechanical Jurisprudence

argumentation that developed a specific legal theory of the machine or, rather, a
theory of the difference between two machines. As we explain in Ch 5, the difference
was made by anatomizing the model into those parts and operations that were essen-
tial to the ‘mode of operation’ of the real artefact, and a single embodiment could be
abstracted into a number of different ideas, depending on the object of the
argument.
The patent model is an especially interesting figure of invention. The way in which
legal concepts and categories were materialized, demonstrated, and communicated
in a material device illustrates the broader point that the concepts and categories of
patent law are not so much means of representation as means of fabrication. To shift
from the metaphor of mapping to that of taxonomic classification, the legal criteria
that identify invention are not signs that index the features of an existent thing; they
are plastic resources from which the interpreter produces the thing that it is supposed
only to describe or represent. Again, the invention is an artefact rather than an exis-
tent form. And, in the course of demonstrating a model, attorneys were not just
revealing the meaning of mechanical form; they were also ‘demonstrating’ patent law
itself. In the exchange between attorneys on opposing sides, each of whom would be
advancing a different interpretation of the legal formula for the ‘mode of operation’
of a machine, doctrinal rules and principles became visible in terms of their effects.
The semantic content of doctrine, or the range of meanings that doctrinal rules
might have, was actualized in the medium of demonstration. That is the sense in
which patent jurisprudence was mechanical. The material-discursive form of the
model, which was succeeded by the material-discursive form of the patent claim,
‘machined’ the relations between law and fact, texts and testimony, and language and
visible form, into the figment of the invention.
By focusing attention on the material media in which the intangible form of the
invention is made visible in legal settings, we develop an alternative conceptual his-
tory of modern patent law. Our objective is to make visible a set of representational
practices that are essential to the functioning of patent jurisprudence, but which are
neither noticed nor explained by patent doctrine. The central actors in our concep-
tual history are not lawyers, judges, inventors, or legislators; instead they are the
media in which intangible form of the invention is made visible and tractable: scale
models, texts, botanical types, and deposits of living material. Were it not for these
material media, patent jurisprudence would have no means of visualizing the inven-
tion in the courtroom, of eliciting the invention from its material embodiments, of
communicating it between different legal or administrative contexts, or of fixing it as
the correlate of a right. Each figure reveals the invention to doctrine in a particular
way and, in return, the questions asked by doctrine shape the cognitive practices that
shape each particular figure. For example, scale models allowed mechanical inven-
tions to be seen in—or as—the periodic movements of a mechanism. Seen in this
way, a machine could be abstracted from its inputs and outputs in the real world

17
 Chapter 1: Introduction

of manufacturing, which made possible the doctrinal representation of inventions

in terms of the functioning of a machine rather than its ultimate functions. Similarly,
taxonomic practices played an important role in allowing biological inventions to
become an object of doctrinal analysis and in shaping the rules that are applied to
biological inventions. In this sense, we show how the specific material form of a
particular legal embodiment shapes the constitution of patent doctrine—whether it
is three-dimensional and observable in the manner of a patent model, graphical and
epistemic in the manner of a patent specification, or material and active in the sense
of sample imbued with taxonomic data and deposited in an archive.
In exploring the evolution and function of these media we focus on the paradigm of
the machine. A fuller historical account of jurisprudential figures of invention might
explore a broader spectrum of inventions; notably, chemical, electrical, and infor-
matic inventions. Given space, we might have been able to extend our study to these
fields of invention, and we might then have been able to tell a richer story of the
modern conception of the invention, but we have focused on mechanical inventions
and biological inventions because they enable us to develop an illuminating contrast
between two variations on the archetype that we introduce in the next chapter—the
archetype of the industrial manufacture. Although patent lawyers will be familiar
with many of our figures of invention, and although much of what we say about the
constitution of those figures is drawn or inferred from a study of doctrinal commen-
taries, our aim in writing this book is to make explicit a dimension of patent law that
is rarely foregrounded in decisions, treatises, or economic analyses of patent law.

18
 2
INDUSTRIAL COPIES

Disembodied Knowledge 22 Interchangeable Manufacture 32

Manufactures 25 The Aesthetic of the Catalogue 36
Intellectual Potentiality 28 Intersections 41
Inventors and Operatives 30

In his Principles of Industrial Economy, which was first published in 1832, Charles
Babbage identified the ‘principle which pervades a very large portion of all manufac-
tures, and upon which the cheapness of the articles produced seems greatly to
depend’:
The principle alluded to is that of copying, taken in its most extensive sense. Almost
unlimited pains are, in some instances, bestowed upon the original, from which a
series of copies is produced; and the larger the number of these copies, the more care
and pains can the manufacturer afford to lavish upon the original. It may thus hap-
pen, that the instrument or tool actually producing the work, shall cost five or even
ten thousand times the price of each individual specimen of its power.1

Babbage observed that ‘Nothing is more remarkable, and yet less unexpected, than
the perfect identity of things manufactured by the same tool’.2 He went on to enu-
merate the central techniques of industrial reproduction: the printing press, the steel
punch, ‘which constantly reproduces the same exact circle’,3 and the lathe, which
unfailingly turned convex forms into their concave enantiomorphs. The basic
techniques of industrial copying—printing, casting, moulding, stamping, and
punching—would have been familiar to traditional craftsmen, but Babbage’s account
celebrated their (re)characterization as the elements of a ‘system of copying’.4 The
paradigm of this system was the printing press: ‘impressions from the same block,
or the same copper-plate, have a similarity which no labor could produce by hand.

1 Charles Babbage, Principles of Industrial Economy (London: Charles Knight, 1832), 48.
2
Loc cit.
3 Loc cit.
4 Babbage, Principles of Industrial Economy, 51.

Figures of Invention: A History of Modern Patent Law. Alain Pottage and Brad Sherman,
Oxford University Press (2010). © Alain Pottage and Brad Sherman.
DOI: 10.1093/acprof:osobl/9780199595631.003.0002
 Chapter 2: Industrial Copies

The minutest traces are transferred to the impressions, and no omission can arise
from the inattention or unskilfulness of the operator.’5 Babbage was particularly
interested in the economies promised by mechanized standardization: the ability to
measure accurately the quantities of raw materials and fuels consumed in manufac-
ture, to reduce the wastage occasioned by traditional handcrafting, to promote an
efficient division of labour, and so on. He was also taken with the idea that precision
in manufacture made it possible to reproduce designs with a complexity of detail or
shape that could not have been achieved by artisans.6 The ideal means of manufac-
ture was the machine, which could reproduce a material form with a degree of accu-
racy and economy that no human hand could match. Where human hands were
used, they were to be organized by a division of labour that turned them into the
agents of closely controlled, repetitive, and quasi-mechanical gestures.
Babbage’s theory of copying expressed the basic phenomenological premise of
modern patent law: in the process of stamping out potentially limitless copies of an
original, machines and manufacturing workshops marked out ‘ideas’ as the prime
movers in the making of consumer artefacts. The sheer quantity of identical copies—
even if quantity was potential and identity imperfect—affirmed the prestige of the
original (upon which ‘almost unlimited pains’ could be bestowed) as the most vital
factor in the manufacturing process. The artefacts themselves were just derivative
‘specimens’ of this idea. This did not make them valueless—for many consumers
manufactures were desirable precisely because they were manufactured—but the
‘idea’ held in an industrial original was the thing in which industrialists invested and
which they were concerned to secure against competitors and counterfeiters. Much
of this book is concerned with the ways in which the archetype of the industrial
manufacture informed the rules, categories, and practices in which the doctrinal
notion of invention was articulated. In the course of our discussion we retrace the
figure of the manufacture to older senses of copying. We also explore how, somewhat
improbably, the figure retained its force into the age of biotechnological and digital
invention. Here, however, we are concerned only with the emergence and basic
consistency of the figure.

5 Loc cit. In the age of the manuscript, precision was compelled by other means. Certain

texts went so far as to suggest that scribes who failed to perform their contracts should be decapi-
tated on the basis of that they had failed to represent the truth (Marta Madero, Tabula picta.
La peinture et l’écriture dans le droit médiéval (Paris: Ecole des Hautes Etudes en Sciences Sociales,
2004), 24).
6
See generally Babbage, ‘On Copying’, in Principles of Industrial Economy. Even the age-old tech-
nique of casting could be deployed to such effect. For example: ‘As well as increasing the durability of
the mould-board, casting made it easier to replicate the desired shape because it was no longer neces-
sary for a craftsman to make each mould-board by hand. This allowed more complicated and efficient
mould-board shapes to come into general usage’ (Liam Brunt, ‘Mechanical innovation in the indus-
trial revolution: the case of plough design’ (2003) 56(3) Economic History Rev 444–77, at p 449).

20
 Industrial Copies

What was the defining characteristic of a manufacture? In his reflections on the orga-
nization of the Great Exhibition of 1851 Babbage distinguished the ‘fine arts’ and
the ‘industrial arts’ in the following terms:
The characteristic of the fine arts, is that each example is an individual—the produc-
tion of individual taste, and executed by individual hands; the produce of the fine arts
is therefore necessarily costly. The characteristic of the industrial arts is, that each
example is but one of a multitude,—generated according to the same law, by tools or
machines, (in the largest sense of those terms,) and moved with unerring precision by
the application of physical force. Their produce is consequently cheap.7

The difference between artistic works and manufactures lay in ‘the very nature of
their production’:8 even the most refined artistic work could become an industrial
product given some economical system of copying. So, for example, although one
could see both sculptures and lace patterns as artistic works, lace-making was better
classed as an industrial art because an original pattern could be copied economically.
Whereas a sculpture was necessarily ‘an individual’ because artistic skill was essential
to the making or finishing of each artefact, lace-making required artistic creativity
only for the making of the original pattern, and thereafter ‘every succeeding copy is
made by mere labour’.9 And because human labour could be organized into a process
of manufacture or replaced by the action of machines it was possible, given the course
of technical evolution, to envisage a progressive reduction in the cost of each copy.10
The essential point is that manufactures—industrial copies—were characterized by
the way they were made rather than their material composition, structural complex-
ity, or ultimate use. From Babbage’s perspective anything could be a manufacture:
the only condition was that it should be an artefact whose production was amenable
to the calculative rationality of his ‘economy of manufactures’.
What was it about manufacturing—as a way of making artefacts—that made it the
implicit founding premise of patent jurisprudence? Babbage understood copying as
a process of moulding: an original was the negative template or ‘counter-form’ from
which a series of copies was cast. Indeed, one might say that Babbage was able to
approximate artistic works to industrial products only because literary and artistic

7
Charles Babbage, The Exposition of 1851; or Views of the Industry, the Science and the Government
of England (London: John Murray, 1851), 48–9.
8 Babbage 1851, 51.
9 Ibid, 50.
10
Noting that ‘machinery of beautiful kind has been contrived for copying accurately, on a reduced
or an enlarged scale, both medals and statues’, Babbage observed that ‘the Venus de Medici itself could
not be justly excluded from a purely industrial exhibition’ if it were used as an example of the ability
of machinery to scale copies up or down (The Exposition of 1851, 52–3). In this case each species of
art would complement the other: ‘The union of [the fine arts and the industrial arts] enables art to be
appreciated and genius to be admired by millions whom its single productions could not reach; whilst
the producer in return, elevated by the continual presence of the multiplied reproductions of the high-
est beauty, acquires a new source of pleasure and feels his own mechanical art raised in his estimation
by such an alliance’ (The Exposition of 1851, 49).

21
 Chapter 2: Industrial Copies

counter-forms—typeset manuscripts, sculptures, copper-plate engravings—were

already the prototypes of his notion of the manufacture. The chapter of Principles of
Industrial Economy that is entitled ‘On Copying’ retails the techniques used to pro-
duce printed works and textiles, bronze and plaster casts, moulded china and glass,
stamped coins, medals and nail heads, drawn wire and piping, and turned woodwork
and die casts, precisely because these were means of turning a counter-form (the
original) into a form (the copy). Moulding has long been the emblematic means by
which originals are turned into copies; in the age of the manufacture this means
became both a generalized mode of production and the optic through which produc-
ers, consumers, and (in due course) patent lawyers construed artefacts. It was only in
the nineteenth century that patent law learned to see through an artefact to its intan-
gible form, and developed the practical and discursive techniques by which it could
identify, record, and examine this intangible form.

Disembodied Knowledge
The distinction between the idea and the embodiment, which is a fundamental prem-
ise of modern patent law, may now be self-evident, but it is of relatively recent origin.
In the late mediaeval economy products travelled widely and competed in urban
market places. Guilds sought to develop and protect a commercial reputation by
means of ‘technological trademarks’11 (material qualities such as the width of a roll of
cloth or the temper of a steel blade), and goldsmiths and printers used monograms to
mark the authorship of their products. Indeed, whereas many scholars (notably in the
field of literary property) suggest that the figure of the author or inventor emerged
only in the eighteenth century, others suggest that ‘proprietary attitudes’ to craft
knowledge were already evident in the thirteenth century, in the guild regulation of
recipes or skills.12 In late mediaeval Venice, privileges were granted to the inventors or
entrepreneurs of useful devices or techniques.13 The earliest grants of privileges made
no real distinction between inventors and entrepreneurs, but in the fifteenth century
the figure of the inventor emerged as an analogue of the more established figures of the
painter or engineer. Liliane Hilaire-Pérez sees the advent of the printing press as a

11
See Gary Richardson, ‘Brand names before the industrial revolution’, NBER Working Paper
No 13930, April 2008.
12 Pamela O. Long argues that ‘in the mediaeval urban context both knowledge of craft processes

and mechanical inventions came to be considered intangible property separate from craft products and
from the labor required to produce them. Such proprietary attitudes are manifest in two separate phe-
nomena, the burgeoning of craft secrecy to protect craft knowledge from theft and the development
of the privilege or patent as a limited monopoly on inventions and craft processes’ (Openness, Secrecy,
Authorship. Technical arts and the culture of knowledge from antiquity to the Renaissance (Baltimore:
Johns Hopkins, 2001) 89).
13
A more specific date is given by Frank D. Prager, ‘A history of intellectual property from 1545–
1787’ (1944) 26 J of the Patent Office Society 711–60. In 1332, a premium for the construction of a
mill was given to Bartolomeo Verde.

22
 Disembodied Knowledge

particularly decisive moment because it brought together a diverse set of actors—

‘authors, literati, engineers, printers, financiers, patrons and artisans’14—each of
whom was keen to delimit and valorize their own contribution to the production of
printed works. In this formative moment creative engineers or artisans began to
describe themselves as ‘inventors’, the better to vindicate their own contribution to a
collaborative enterprise.15 What, then, was the difference between ‘intangible craft
property’ or a privilege right and the modern form of the patentable invention?
Our hypothesis is that in the late mediaeval and early modern periods inventive ideas
did not circulate as distinct entities. Although an artefact could express a design or
bear a mark of authorship there was no sense of the idea—or of knowledge more
generally—as a factor that could be isolated from the other processes or ingredients
that went into making a thing. Ideas were not yet what the invention is to modern
patent law: a self-contained template that instructs and controls the reproduction of
a product or process. The prime movers in the making of artefacts were not ideas or
designs but persons; namely, the artisans who brought patterns, materials, proce-
dures, and skill together to form an artefact. Ideas were embodied in people more
than in texts or drawings. The craft recipes that circulated in the mediaeval period in
the form of books of secrets were not compiled for instrumental purposes but as
library works for scholarly collectors.16 The recipes or procedures that guilds treated
as ‘intangible craft property’ were more directly instrumental, but they only worked
when they were brought to life by the embodied learning transmitted in the course
of an apprenticeship. The ‘infringement’ of such a secret would have involved some-
thing more than mere copying.17 In the era of privileges mechanical knowledge was
divided between philosophical mechanics and practical mechanics, but in neither
case were texts or drawings understood as complete embodiments of ideas. On
one side, philosopher-inventors communicated the theory of a machine, leaving out
the material factors that are essential elements of any workable recipe,18 while on the

14 Liliane Hilaire-Pérez, L’invention technique au siècle des lumières (Paris: Albin Michel, 2000), 40

(and see generally Ch 1).

15
The notions of the invention or the inventor were not new to the fifteenth century. Catalogues of
inventions (heuremolographia) existed as early as the fourth century BC (see Robert Halleux, Le savoir
de la main. Savants et artisans dans l’Europe pré-industrielle (Paris: Armand Colin, 2009), 20–1).
16
These compilations were owned not by artisans but by literati, painters, copyists, physicians,
and clerics, who would add their own glosses by means of marginal notes (op cit, 54–5). Cf William
Eamon, Science and the Secrets of Nature. Books of Secrets in Medieval and Early Modern Culture
(Princeton: Princeton University Press, 1996).
17
As we observe further on in this chapter, patent doctrine externalizes this kind of knowledge by
treating it as a competence of the person having ordinary skill in the art.
18 ‘The materiality of technology was often ignored in these presentational treatises. Machines

in these books should be understood as a product of the engineer’s brain, his ingenium; their mate-
rial realization was not the topic of these books. The organizational activities of the engineer on the
building site were mentioned as scarcely as materials, measurements, or gear ratios—it was considered
self-evident that such factors had to be established at a later point of time at the site’ (Marcus Popplow,
‘Why draw pictures of machines? The social contexts of early modern machine drawings’ in Wolfgang
Lefèvre, Picturing Machines 1400–1700 (Cambridge MA: MIT Press, 2004), 24).

23
 Chapter 2: Industrial Copies

other side the drawings produced by mechanics in support of their petitions for
privileges were too partial to function as blueprints for construction.19 Moreover,
there was no real concern to identify and isolate the specific point of novelty in any
mechanical idea. So, for example, the sovereign patrons who granted privileges often
commissioned illustrated repertories of mechanical ideas which collected the novel
into the old without making the difference.20 The point is that recipes, descriptions,
and drawings—indeed ideas in general—were construed as resources from which
the artisan mechanic could construct a machine by drawing old and new mechanical
principles into a creative process of construction. Texts and drawings inspired rather
than instructed manufacture.
By the sixteenth century the privilege had become the basis of a kind of market in
mobile embodied knowledge. In the spirit of mercantilism, territorial powers sought
to attract artisans by offering them a better deal than they were getting in their native
states; so, for example, many Venetian glass makers were persuaded to migrate north-
wards bringing their skills with them.21 In this economy of knowledge a machine or
process qualified as novel if it was new to the jurisdiction. An unoriginal ‘inventor’
could acquire a privilege by virtue of being the first to import an existing but extra-
territorially-produced machine or process into the jurisdiction. In the frequently
cited words of one late seventeenth century English judgment, both imports and
original inventions qualified as ‘new manufactures’ within the terms of the English
statute because ‘whether learned by travel or by study, it is the same thing’.22
Commenting on this territorial sense of novelty, Mario Biagioli argues that the privi-
lege was not truly a species of ‘intellectual’ property:
[A]s a regime, the privilege had no need for the idea of the invention (as a category),
nor did it have a conceptual or legal space to represent it even if such an idea were
to be found in the inventor’s mind. [T]here was just nothing intellectual about the
privilege. It was all about locality, materiality, and utility.23

Privileges did not reward or protect ideas as such. Precisely because knowledge could
not yet be isolated from the other factors involved in the production of an artefact or
device one could only secure the means of reproducing an artefact by recruiting and
retaining the persons in whom the specific know-how was embodied. By awarding a
monopoly to a particular person the privilege was able to capture the set of compe-
tences, techniques, tools, and materials—in short, the entire ‘workshop’—required for

19
‘[A] lot of “gaps” concerning the realization of machine elements remained to be filled by oral
instructions or through the expertise of the artisans’ (Popplow, ‘Why draw pictures of machines?’,
34).
20
See Halleux, Le savoir de la main, 167.
21 See Pamela O. Long, Openness, Secrecy, Authorship. Technical arts and the culture of knowledge

from antiquity to the Renaissance (Baltimore: Johns Hopkins, 2001), 88–96.

22
Edgebury v Stephens (1691) 1 Web PC 35.
23 Mario Biagioli, ‘Patent republic: representing inventions, constructing rights and authors’

(2006) 73:4 Social Research 1146.

24
 Manufactures

the production of a useful artefact or device. And the usual term of the privilege (in the
case of the English Statute of Monopolies it was fourteen years, or twice the standard
term of apprenticeship) was calculated to encourage the transmission of know-how by
means of the old techniques of embodied learning—learning through hand and eye.
The effect of the dissolution of the old regime of privileges was to disembody knowl-
edge from persons; indeed, there were two related processes of disembodiment, both
of which were essential conditions for the emergence of the legal distinction between
idea and embodiment. First, craft production was eclipsed by the rise of manufacture
and large-scale industry. In these economies of production the traditional skill of the
artisan in bringing together the material and conceptual ingredients that went into
making an artefact was eclipsed by the intelligence invested in the (inventive) design
and the means established for its reproduction. The reduction of craftsmanship to a
mere means allowed the distinction between the idea and its exemplars—and, ulti-
mately, between invention and embodiment—to become obvious. But there was
another sense in which knowledge was embodied in—or ascribed to—persons in the
old regime of privileges and patronage. Quite simply, the value of an invention
reflected the status of inventors, patrons, or scientific experts. In the modern period,
by contrast, the invention became a technical artefact, deriving its value from the
impersonal effects of the market and its meaning from an ostensibly rational evalua-
tion of its technical quality. Therefore, the constitution of the invention as a technical
form depended on the historical and conceptual developments that we describe in
the next chapter, notably the reinvention of the patent specification.

Manufactures
Ideas only became the prime movers in the making of an artefact, and things in their
own right, when knowledge became a disembodied agency; when, that is, the role of
the artisan as the bearer of craft knowledge was eclipsed by manufacturing operations
and industrial machinery. When this happened craftsmen became mere operatives,
instruments rather than creative agents, one of the means by which an industrial
design was reproduced as a series of manufactures. As with all of the historical pro-
cesses involved in the emergence of the modern sense of invention there are different
views as to when the logic of industrial manufacturing first emerged, and as to
whether what emerged was ideology or actuality. The basic operation of large-scale
copying is as old as the first techniques of casting, moulding, or impressing,24 and

24
Mass production originated in ancient Egypt. Aleida and Jan Assmann give the example of four-
teenth century BC figurines: ‘The Egyptians designed such figurines so as to be easily copied, not with
the idea of “reproducing” an original, but of producing in series. They developed several techniques of
mass production: casting and founding yielded the bronze statues of Osiris, reproduced in quantity
to accompany the defunct to the netherworld; stamping and minting made it possible to imprint an
individual’s symbol of claim and property on a virtually endless number of objects. . . . Yet these early

25
 Chapter 2: Industrial Copies

that phenomenon of the serially-reproduced copy emerged with the rise of the print-
ing press. Nonetheless, there are a number of reasons for suggesting that the way in
which modern patent doctrine made the difference between idea and embodiment
was conditioned by modern manufacturing as a specific historical phenomenon. The
printing press was not yet a system of manufacturing because it did not express the
broad social transformation that is described in Marx’s account of the rise of manu-
factures and large-scale industry. Manufacturing was embedded in a decisive moment
of historical evolution and social differentiation, which was realized in a new division
of labour, a new sense of the individuality (and productivity) of human beings, and
a new sense of the economic value of technical or scientific knowledge. For now,
what is crucial is the fact that by means of workshop organization, mechanization,
and (ultimately) automation, manufacturing turned the making of artefacts into a
purely instrumental process.25 It was only when processes of fabrication had been
thoroughly instrumentalized (both practically and ideologically) that one could
truly see an artefact as the copy of an original, or see through a material artefact to its
immaterial ‘principle’. This is the sense in which manufacturing became the basic
phenomenological premise of patent law; quite simply, it made the constitution of
technical artefacts visible in an entirely new light.
By thoroughly instrumentalizing the fabrication of artefacts regimes of manufactur-
ing eclipsed the traditional role of craftsmanship. In its making, a craft product
combined material properties, local habits of use or consumption, the incorporated
know-how of a guild, or the preferences of the patrons who commissioned bespoke
artefacts:
Craftwork was not simply a mode of hand-made production (artisans can use
machines too), but a social, cultural, and legal system which validated collective privi-
leges and individual property in skill. . . . In such a scheme, every artifact was not
simply individually ‘custom-made’, but was understood to be idiosyncratic, personal,
and particular.26

Guild artefacts could look alike: they might be made with materials (metals, dyes,
clay, or fleece) of the same distinctive provenance; they might be made according to
the same generalized pattern, one that was held in the head or diffused in a pattern

forms of series production must be distinguished from modern phenomena of mass culture in at least
three ways: first, the proliferated copies are copies without an original; second, they are all based on a
logic of nonarbitrary signs typical of premodern societies; third, they are always authorized reproduc-
tions, directly emanating from state authority and power’ (‘Air from other planets blowing’, 149).
25
Mechanization was not necessarily a matter of instrumentality or efficiency. Langdon Winner
reports the example of Cyrus McCormick, who in the 1880s equipped his Chicago manufactur-
ing plant with pneumatic casting machines that were actually less precise and less efficient than the
unskilled workers who had performed the task until then. His object, which he achieved, was to
‘weed out the bad element among the men’, namely, those who had organized the local labour union
(‘Do artifacts have politics’ (1980) Daedalus (109:1) 121–36, at p 124–5.
26 See Ken Alder, ‘Making things the same: representation, tolerance and the end of the ancient

regime in France’ (1998) 28:4 Social Studies of Science 499–545.

26
 Manufactures

book; or, if they were made by members of the same guild, they might express the
same technical or aesthetic style. Yet it would have made little sense to see these arte-
facts as ‘copies’ of any kind, let alone as one of a potentially infinite succession of
identical artefacts. Precisely because the identity of an artefact emerged from its mak-
ing, or from the process in which an artisan actualized diverse technical and material
influences into a finished thing, craft artefacts had no autonomous ‘form’, in the
sense of a reproducible (ideal) template that could be isolated and privileged over
other conditions of production. In terms of David Pye’s classic distinction, guild
artefacts were the products of the workmanship of risk rather than the workmanship
of certainty.27 The distinction between an idea and its specimens emerged only when
the regime of manufactures had reduced the poiesis of craftsmanship to a mere
means.
Manufacturing regimes instrumentalized labour, turning craftsmen into disciplined
(and economical) operatives. For Babbage this was a virtue:
The constant repetition of the same process necessarily produces in the workman
a degree of excellence and rapidity in his particular department, which is never
possessed by one person who is obliged to execute many different processes.28

The broader implications are expressed in Marx’s account of how the capitalist man-
ufacturing workshop reduced each specialized worker to an ‘automatic, one-sided
implement’:29 a whole craft was decomposed into a number of simple, highly-
detailed, and monotonous operations, and complex craft techniques were divided
into ‘merely supplementary and partial operations in the production of one particu-
lar commodity’.30 Whereas traditional crafts unified diverse kinds of competence
and dexterity, and whereas craft products were always the unique works of an indi-
vidual craftsman, each manufacturing task was now just a detailed operation in an
enterprise that was entirely controlled by the capitalist. Only when labour had thus
become a colourless ‘technical quantity’, commanded by the ingenuity of inventors
and overseers, could artefacts be construed as copies, or ‘one of a multitude’.

27 The workmanship of risk is so called because ‘the quality of the result is continually at risk

during the process of making’: ‘the quality of the result is not pre-determined, but depends on the
judgment, dexterity and care which the maker exercises as he works’ (David Pye, The Nature and Art of
Workmanship (London: The Herbert Press, 1995), 20). In the workmanship of certainty, by contrast,
‘the quality of the result is exactly predetermined before a single saleable thing is made’ (loc cit). The
two might imply each other in an almost Marxian way: ‘The first thing to be observed about printing,
or any other representative example of the workmanship of certainty, is that it originally involves more
of judgment, dexterity, and care than writing does, not less: for the type had to be carved out of metal
by hand in the first instance before any could be cast; and the compositor of all people has to work care-
fully, and so on. But all this judgment, dexterity and care has been concentrated and stored up before
the actual printing starts. Once it does start, the stored-up capital is drawn on and the newspapers
come pouring out in an absolutely predetermined form’ (ibid, 20).
28
Babbage, Principles of Industrial Economy, 134.
29 Marx, Capital: A Critique of Political Economy (London: Penguin, 1990), 458.
30 Ibid, 457.

27
 Chapter 2: Industrial Copies

Intellectual Potentiality
More than Babbage, Marx draws out the connection between the disembodying of
knowledge from the person of the artisan and the consequent emergence of the eco-
nomic and legal form of the invention. The reduction of craftsmen to mere labourers
was the most obvious effect of a generalized process in which human competences
became disembodied social functions. Karl Marx’s account of the alienation of work-
ers from the products of their labour is also the story of the emergence of this new
mode of social differentiation. Marx observed that the regime of manufacture31 had
developed by ‘reproducing and systematically driving to an extreme within the
workshop the naturally developed differentiation which it found ready to hand in
society’.32 Historically, market competition had forced the increased specialization
of craft guilds, and the manufacturing workshop carried this process of differentia-
tion ‘to an extreme’ by sub-dividing whole crafts into a number of discrete opera-
tions, which were then combined into the production line of a manufactory.33 There
was some continuity between craft production and manufacturing; in the workshop
each operation ‘retain[ed] the character of a handicraft, and [was] therefore depen-
dent on the strength, skill, quickness and sureness with which the individual worker
manipulate[d] his tools’.34 But this new division of labour expressed a broader social
transformation in which human became the adjuncts of machines and financial
markets.
Although market competition had forced the guilds to become increasingly special-
ized the fact that each guild artisan practised the whole craft meant that ‘the worker
and his means of production remained closely united, like the snail with its shell’.35
All of the skills and competences that made up a craft were collected together as
the attributes of individuals. This had two implications. First, these (cognitive and
physical) competences were so thoroughly compounded that they were difficult
to distinguish. Second, lines of social differentiation cut between persons as the

31
Manufacture was based either on the sub-division of a single production process (paper-making
or needle-making) into a succession of highly specialized and routinized operations, or on the aggrega-
tion into a single workshop of all of the diverse crafts involved in making a complex article such as a
watch or a carriage.
32
Marx, Capital, 459.
33 According to Babbage (at 218) this division of labour economized on investments in training:

‘Five or seven years have been adopted, in a great many trades, as the time considered requisite for a lad
to acquire a sufficient knowledge of his art, and to enable him to repay by his labour, during the latter
portion of his time, the expense incurred by his master at its commencement. If, however, instead of
learning all the different processes for making a needle, for instance, his attention be confined to one
operation, the portion of time consumed unprofitably at the commencement of his apprenticeship
will be small, and all the rest of it will be beneficial to his master: and, consequently, if there be any
competition amongst the masters, the apprentice will be able to make better terms, and diminish the
period of his servitude.’
34 Marx, Capital, 457–8.
35 Ibid, 480.

28
 Intellectual Potentiality

embodiments of these compounded skills and not between the skills that were
embodied in persons. The new economies of manufacturing and large-scale industry
expressed the latter principle. Social differentiation no longer cut between whole
crafts (and hence whole persons) but between the various competences that were
involved in making a craft product. In sociological terms, Marx’s account of
alienation and commodity fetishism is one take on the historical transition from a
society divided along lines of status or hierarchy to a society premised on functional
differentiation. According to Marx, this process of disembodiment was an essential
condition for the emergence of the modern form of industrial property.
As it became disembodied from the person of the artisan knowledge was trans-
formed into a different and distinct kind of social agency. Embodied, tacit, or organic
knowledge was not easily separable from the other competences of the skilled
craftsman. Where was the line to be drawn between cognitive operations and physi-
cal labour? Where did knowledge end and bodily reflexes and skills begin? The point
about learning by hand and eye is, precisely, that mind and body are educated
conjointly. By reducing embodied skill first into one of the instrumentalities
organized into the production of the manufacturing workshop, and then to sheer
physical force, regimes of industrial production divided knowledge from labour.
Knowledge ceased to be an attribute of persons and became a force set against the
worker and controlled by the impersonal imperatives of capital:
It is a result of the division of labor in manufacture that the worker is brought face to
face with the intellectual potentialities [ geistige Potenzen] of the material process of
production as the property of another and as a power which rules over him. [The
process] is completed in large-scale industry, which [makes] science a potentiality for
production which is distinct from labor and presses it into the service of capital.36

The manufacturing workshop had already turned labour into a ‘technical quantity’,
and large-scale industrial factories took the further step of eliminating even the lim-
ited sense in which manufacturing depended on human dexterity and attention. The
operations performed in the ‘vast automaton’ of an industrial factory were no longer
limited by the physical competences of human labourers. As soon as machine tools
had become sophisticated enough to turn ‘the tools of man’ into mechanical imple-
ments production processes acquired a purely ‘technical’ unity: ‘The number of tools
that a machine can bring into play simultaneously is from the outset independent
of the organic limitations that confine the tools of the handicraftsman’.37 Human
operators were redundant even as intermediaries. In the manufacturing workshop

36
Ibid, 482. Here, Marx refers to William Thompson’s Inquiry into the Principles of the Distribution
of Wealth (1824): ‘[K]nowledge, instead of remaining the handmaid of labor in the hand of the lab-
orer to increase his productive powers has almost everywhere arrayed itself against labor. Knowledge
becomes an instrument, capable of being detached from labor and opposed to it’ (cited in Capital,
482–3, note 44).
37 Marx, Capital, 494–5.

29
 Chapter 2: Industrial Copies

materials and unfinished articles had to be ‘transported incessantly from one hand to
another, and from one process to another’, but in large-scale industry ‘the problem
of how to execute each particular process, and to bind the different partial processes
into a whole, is solved by the aid of machines, chemistry, etc’.38 Many of the inven-
tions of the nineteenth century addressed the technical question of how to automate
production; or, quite simply, how to ‘bind’ the different phases of production by
means of agencies other than human skill. Marx concluded that this was the point at
which technical knowledge became intellectual property: it was the point at which
‘invention becomes a business and the application of science to direct production
becomes a prospect which determines and solicits it’.39

Inventors and Operatives

Recent historical scholarship complicates the story of a linear shift from making to
manufacturing and large-scale industry: instead of seeing ‘craft production’ and
‘industrial manufacturing’ as successive phases we should see them as labels for some
of the diverse modes of fabrication that co-existed in early modern production net-
works. Historical accounts have revealed how, for example, credit relations and sub-
contracting arrangements,40 or practices such as ‘putting out’,41 developed variegated
modes of production. So in the real world ‘manufacturing’ and ‘craftsmanship’ were
often just elements of broader production networks; and, as in any network, the
nature and agency of each element was conditioned by its relation to other elements.
Whatever the situation may actually have been, patent law adopted the ideological
distinction between manufacturing and making as an essential criterion of patent-
ability. Patentees had to show that what they claimed as their invention represented
an exercise of inventive ingenuity rather than mere mechanical skill. In one influen-
tial mid nineteenth century decision it was held that jurors should apply the follow-
ing test in determining whether something qualified as a patentable invention:
You must ascertain whether the change is the result of mechanical skill, worked out
by mechanical devices—of a knowledge that belongs to that department of labor—or

38 Ibid, 463 and 502, respectively.

39
Karl Marx, Grundrisse. The Critique of the Foundations of Political Economy (Harmondsworth:
Penguin, 2005), 703–4.
40
Giorgio Riello, ‘Strategies and boundaries: subcontracting and the London trades in the long
eighteenth century’ (2008) 9:2 Enterprise and Society 243–80; James R. Farr, ‘On the shop floor:
guilds, artisans, and the European market economy’, 1350–1750 (1997) 1:1 Journal of Early Modern
History 24–54.
41
See generally Maxine Berg, The Age of Manufactures, 1700–1820: Industry, Innovation and Work
in Britain, 2nd edn (London: Routledge, 1994).

30
 Inventors and Operatives

whether the change is the result of mind, of genius, of invention, in which you dis-
cover something more than mere mechanical skill and ingenuity.42

Patent jurisprudence routinely dealt with disputes as to which of those involved in

realizing an invention had made the decisive ‘inventive’ input; but even if the world
from which these disputes emerged was not actually structured by the difference
between creative and instrumental labour—how could it have been?—legal argu-
ment proceeded as if there was such a difference to be found. Patent law fixed the
theory of copying as the rhetorical form into which the realities of collaborative cre-
ation had to be translated if one was to argue or defend an infringement action.43 But
even if the distinction between creative and instrumental labour was more an effec-
tive fiction than a constative proposition about reality, the fiction was modelled on
the form (or ideology) of the industrial copy.
The doctrinal distinction between creative ingenuity and mechanical skill was cate-
gorical rather than empirical. Lawyers recognized that the work of constructing,
installing, and operating new machines depended on the craftsmanship of mechan-
ics or operatives, who often had to adapt the material composition or structural
configuration of a machine in order to make it work.44 Nevertheless, patent doctrine
simplified things by sharply distinguishing the invention from the means by which
it was realized. Although mechanics and operatives often had to exercise craftsman-
ship in realizing an invention, the theory was that craftsmanship was just the instru-
mental means by which a design was executed. The invention remained invariant,
whatever material shape it was given by the mechanic. As William Robinson put it in
his late nineteenth century patent treatise: ‘Whatever forms of tangible expression it
receives through the varied skill and industry of the mechanic, [the] idea and essence
[of the invention] remain unchanged.’45 The invention was understood here as a
transcendent force, as a form that retained its specificity and integrity despite and
through all possible variations of its embodiments. So, in identifying an invention one
had to abstract backwards from the embodiment to the pure idea, before it was worked

42
Tatham v Le Roy (1852) 2 Blatch 474, 488.
43
See Wilcox v Bookwalter (1887) 31 Fed Rep 224.
44 Commentaries on the workings of patent system in nineteenth century England noticed the

alienation experienced by ‘operatives’ in the regime of industrial manufacture: ‘[I]n olden times, an
inventor used to be one of that handy class of men who could turn their attention to anything; in
modern times, such has been the division of labour, that a workman in a factory at the present day has
only to pursue one beaten track, neither turning to the right hand nor to the left; he goes on doing the
same act day by day, and gains a facility by reason of his constant attention to one subject in doing that
particular thing well. By reason of that, he does not use any inventive faculties or any ingenuity; the
ingenuity which he brings to bear is to produce the largest quantity of the thing which he is set to do,
if he is paid by piece-work’ (Minutes of Evidence, Select Committee on the Patent Law Amendment
Bill, 33).
45 William C. Robinson, The Law of Patents for Useful Inventions (Boston: Little & Brown, 1890),

vol 1, 201.

31
 Chapter 2: Industrial Copies

into a functioning machine.46 Doctrine assigned ideas and their embodiments to

different ontic dimensions. It followed that even if the work of mechanics and opera-
tives was more akin to the ‘workmanship of risk’ than the ‘workmanship of certainty’,
from the perspective of patent doctrine it was still just an instrumental means of real-
izing the invention. In large part this was made possible by the developments we
describe in the next chapter: notably by the emergence of the specification as a
medium in which an idea could be circulated as a recipe.

Interchangeable Manufacture
Although our suggestion is not that Babbage’s notion of the industrial copy directly
informed the way that English patent jurisprudence in the late eighteenth and early
nineteenth century came to define a ‘manufacture’ for the purposes of patent law,47
lawyers in that period would have been entirely familiar with a species of artefact
whose ‘entire essence, purpose, and characteristics’ did indeed ‘begin and end in
form alone’:48
The Boulton and Watt steam engine has long ranked as the key indicator to historians
of eighteenth-century invention and ingenuity. But pride of place during the eigh-
teenth century itself was given to an explosion of new, intricate consumer good from
silver-plated coffee pots to stamped brassware and japanned papier maché tea trays.
Manufacturers and retailers patented and celebrated consumer goods and endowed
them with admired eighteenth-century attributes of ‘convenience’, ‘ingenuity’,
‘novelty’, ‘taste’, and ‘style’.49

This was exactly the kind of manufacture that Babbage had in mind. Substantial
investments were made in the originals from which these artefacts were produced—
steel dies and stamps for the reproduction of cutlery, blocks and looms for the
production of patterned textiles or carpets, moulds for china and porcelain
artefacts—and these investments were often protected by patents. In the eighteenth
century manufacturers of consumer novelties were already the most prominent
holders of English patents.50 Patents were often sought for their value in advertising

46 For a clear statement of this principle see William Robinson’s recommendation that ‘the exam-

iner should study the invention from the point of view occupied by the inventor when he first con-
templated it as an operative means, and before it became interwoven in his mind with those ideas,
derived from his mechanical knowledge, which determined its embodiment in this particular form’
(Robinson, The Law of Patents for Useful Inventions) vol 1, 314.
47
See Ch 4.
48 George Ticknor Curtis, A Treatise on the Law of Patents for Useful Inventions (Boston: Little &

Brown, 1849), 17
49
Maxine Berg, Luxury and Pleasure in Eighteenth-Century Britain (Oxford: Oxford University
Press, 2005), 86.
50 See Maxine Berg, Luxury and Pleasure, Ch 3.

32
 Interchangeable Manufacture

products rather than enforcing rights,51 but the flow of consumer manufactures
undoubtedly reinforced the tendency of judges to identify the invention as the
original from which copies were reproduced.
By the second half of the eighteenth century, British manufacturers had evolved
a kind of ‘international style’ in clothing, accessories, tableware, and household
furnishings,52 and these goods continued to reach consumers in the newly-
independent United States.53 Nonetheless, ‘manufactures’ were not as generalized as
they were in England, and nor, one might speculate, was the kind of copying that was
central to Babbage’s account. In the United States mass production only got under
way in the 1840s and the assembly line used to make the Ford Model T was an inven-
tion of the early twentieth century.54 Even when large-scale manufacture became
established it did not entirely supplant other modes of production. Throughout the
nineteenth century and well into the twentieth diverse kinds of production regime
evolved in parallel.55 So consumer manufactures may not have been directly
influential in shaping the premises of the emerging patent law of the new Republic.
In its formative period patent jurisprudence in the United States was focused on
machines, some of which, notably the nail-cutting machines that became the subject
of a number of patents in the late eighteenth and early nineteenth century, produced
manufactures of a certain kind.56 The leading infringement actions—the appellate
decisions that were written into treatises and doctrinal commentaries—were focused

51
See Maxine Berg, ‘From imitation to invention: creating commodities in eighteenth-century
Britain’ (2002) 55 Economic History Rev 14.
52 See Berg, Luxury and Pleasure, ch 8, and especially p 289: ‘What else was there to consume? And

just what part could domestically produced commodities in the colonies have played at this stage?
British mercantile power imposed great restrictions on access to goods from elsewhere. The colonists,
furthermore, were predominantly of British descent, and adopted a wider British material culture by
force of habit, if not informed choice.’
53 For example, catalogues circulated by British manufacturers were widely used by consumers in

the early Republic (see Berg, Luxury and Pleasure, 288).

54
Which was itself based on the model of the ‘disassembly line’ of Chicago meat-packing ware-
houses, in which animal carcasses were carved into joints and packed for distribution (see Siegfried
Giedion, Mechanization Takes Command: A Contribution to Anonymous History (New York: Norton,
1969 [1948]), at 89).
55 Adopting Philip Scranton’s categorization, we can distinguish between specialty production

(custom production and batch production) and large-scale production (bulk production and mass
manufacture). Custom production refers both to the fabrication of bespoke consumer goods and to
the making of complex and expensive devices such as steam engines and locomotives, whose specifica-
tions could be adapted to the requirements of each client; batch production characterizes the practice
of aggregating customer orders into large production runs that were directly matched to the aggre-
gated demand; bulk-produced artefacts were technically simple staple goods (such as nails) that could
be produced in large quantities without waiting for a specific order because they had a ready market;
mass manufacture came into being only with the emergence of the automated production line and
the evolution of branding and advertising technologies, which created new market opportunities.
See generally Philip Scranton, Endless Novelty. Specialty Production and American Industrialization,
1865–1925 (Princeton: Princeton University Press, 1997).
56
Beginning with Jacob Perkins’s nail-cutting machine of 1793 (see David R Meyer, Networked
Machinists. High Technology Industries in Antebellum America (Baltimore: Johns Hopkins University
Press, 2006), 59.

33
 Chapter 2: Industrial Copies

on machines and on the question of how one distinguished the ‘principle’ of one
machine from that of another. And although the machines in question were artisanal
creations rather than industrial manufactures they posed exactly the question that
arose in relation to industrial copies: how should the idea be distinguished from its
embodiments?
This parallel sense of the industrial copy is exemplified in what has been called the
‘American system of manufactures’ or ‘the system of interchangeable manufacture’.57
The ‘American system’ fragmented and instrumentalized craft labour to much the
same effect as the classic manufacturing workshops described by Marx. In so doing it
anticipated Babbage’s economy of manufactures, and his sense of the relation between
original and copy. It seems unlikely that Babbage’s account of manufactures was
directly influenced by the theory of the American system, but the theory of inter-
changeable manufactures resonated with Babbage’s justification for regarding his cal-
culating engines as his own intellectual property. In 1798 and 1799, respectively, the
small arms manufacturers Eli Whitney and Simeon North were granted government
contracts for the production of firearms with interchangeable parts. Of the two, per-
haps the true innovator was North, who had the idea of dividing the manufacturing
process into distinct operations, each focused on making a single component of a
pistol lock. What was novel was not the division of labour as such but the idea that
each division of the manufacturing operation should be responsible for making a
single part of the lock, and that each of these parts should be modelled on a master
template. The template served not only as a pattern that instructed the making of the
component but also as a control on finished part: the craftsman was expected to
make the piece to such a standard of precision and uniformity that it could be
fitted back into its place in the master template. Components made in this way could
be directly assembled into a complete lock with fully interchangeable parts. The
innovation involved ‘mak[ing] parts to a standard gauge rather than shaping parts
similar to the pattern and then fitting the component parts together to form a
complete—and unique—lock. It represent[ed] an entirely different approach to
arms manufacture’.58
North’s approach was taken up and refined in the Springfield Armory, where by 1819
gauging had become an effective means of workshop discipline:
The basis of the Springfield system was the pattern or model weapon. Alongside the
model, the master armorer maintained a set of master gauges that verified critical
dimensions of the model. All shop foremen and inspectors also kept a set of gauges
corresponding to the parts made or inspected in their departments. Finally, the
workmen responsible for the production of particular parts were issued gauges to

57 See Joseph Wickham Roe, English and American Tool Builders (New Haven: Yale University

Press, 1916).
58 David A. Hounshell, From the American System to Mass Production, 1800–1932 (Baltimore:

Johns Hopkins University Press, 1984), 29.

34
 Interchangeable Manufacture

check dimensions of those parts while they were being made. In theory all gauges cor-
responded to the model and master gauges. Although made of hardened steel, the
production and inspection gauges were subject to wear and therefore were checked
regularly against the model or master gauges.59

Even though the primary goal was precision or battlefield utility (rather than effi-
ciency) the use of the gauge system, which was later reinforced by the development
of jigs and other material means of controlling dexterity,60 transformed the economy
of labour and prepared the way for the mechanization of manufacture. From its
inception, the armory system was informed by the logic of copying. In 1798 Eli
Whitney observed that the basic object of manufacturing was ‘to make the same
parts of different guns, as locks, for example, as much like each other as the successive
impressions of a copper-plate engraving’.61 Coincidentally, copper-plate engraving
was also the chief inspiration for Babbage’s theory of manufacturing as the means of
replicating ‘a similarity which no labor could produce by hand’.
It may be that interchangeable manufacture was more an ideology than a reality, or
indeed that interchangeability was just a cipher for uniformity.62 North made few
weapons according to his method, which only really paid off when it was taken up
and refined in the Springfield and Harper’s Ferry Armories, and Whitney was
famously slow to meet his contractual obligations. In any case the armory system
remained a somewhat specialized procedure; the most celebrated nineteenth century
examples of American industry—the Colt revolver and the Singer sewing machine—
were produced in workshops in which mechanization rather than precision was the
governing theme, or where, as in the case of the Singer sewing machine, production
relied on the old technique of casting and hand filing metal parts.63 But even if
interchangeability was just an ideal, and even if Whitney in particular was just
‘a publicist of mechanized, interchangeable parts manufacture, not a creator’,64
Whitney’s success as a publicist points to the sense in which the statesmen who
awarded government contracts assumed the virtues of interchangeability and, more
broadly, the ideology of the copy. One of these statesmen was Thomas Jefferson,
who had been an advocate of interchangeability ever since his stay as a minister in
France, and whose role in drafting the first patent statute has been amply described.

59 Ibid, 34.
60 Jigs held a piece of metal in place while it was worked to the template, eliminating the craftsman’s
own judgment.
61 Cited in L. T. C. Rolt Tools for the Job. A short history of machine tools (London: Batsford, 1965),

142.
62
See generally Hounshell and David R. Meyer, Networked Machinists. High Technology Industries
in Antebellum America (Baltimore: Johns Hopkins University Press, 2006), Ch 3.
63 See Hounshell, 46–50 (for Colt) and 87 (for Singer), where the author observes that ‘the

predominance of casting provided only the crudest uniformity, a uniformity worlds apart from the
absolute standard sought by the United States Ordnance Department’.
64 Hounshell, 31.

35
Discovering Diverse Content Through
Random Scribd Documents
 VIII. TOOLS, THOUGHT AND
LANGUAGE.
Sociability, with its consequences, the moral feelings, is a
peculiarity which distinguishes man from some, but not from all,
animals. There are, however, some peculiarities which belong to
man only, and which separate him from the entire animal world.
These, in the first instance, are language, then reason. Man is also
the only animal that makes use of self-made tools. For all these
things, animals have but the slightest propensity, but among men,
these have developed essentially new characteristics. Many animals
have some kind of voice, and by means of sounds they can come to
some understanding, but only man has such sounds as serve as a
medium for naming things and actions. Animals also have brains
with which they think, but the human mind shows, as we shall see
later, an entirely new departure, which we designate as reasonable
or abstract thinking. Animals, too, make use of inanimate things
which they use for certain purposes; for instance, the building of
nests. Monkeys sometimes use sticks or stones, but only man uses
tools which he himself deliberately makes for particular purposes.
These primitive tendencies among animals show us that the
peculiarities possessed by man came to him, not by means of some
wonderful creation, but by continuous development.
Animals living isolated can not arrive at such a stage of
development. It is only as a social being that man can reach this
stage. Outside the pale of society, language is just as useless as an
eye in darkness, and is bound to die. Language is possible only in
society, and only there is it needed as a means by which members
may understand one another. All social animals possess some
means of understanding each other, otherwise they would not be
able to execute certain plans conjointly. The sounds that were
necessary as a means of communication for the primitive man while
at his tasks must have developed into names of activities, and later
into names of things.
The use of tools also presupposes a society, for it is only through
society that attainments can be preserved. In a state of isolated life
every one has to make discoveries for himself; with the death of the
discoverer the discovery also becomes extinct, and each has to start
anew from the very beginning. It is only through society that the
experience and knowledge of former generations can be preserved,
perpetuated, and developed. In a group or body a few may die, but
the group, as such, does not. It remains. Knowledge in the use of
tools is not born with man, but is acquired later. Mental tradition,
such as is possible only in society, is therefore necessary.
While these special characteristics of man are inseparable from
his social life, they also stand in strong relation to each other. These
characteristics have not been developed singly, but all have
progressed in common. That thought and language can exist and
develop only in common is known to everyone who has but tried to
think of the nature of his own thoughts. When we think or consider,
we, in fact, talk to ourselves; we observe then that it is impossible for
us to think clearly without using words. Where we do not think with
words our thoughts remain indistinct and we can not combine the
various thoughts. Every one can realize this from his own
experience. This is because so-called abstract reason is perceptive
thought and can take place only by means of perceptions.
Perceptions we can designate and hold only by means of names.
Every attempt to broaden our minds, every attempt to advance our
knowledge must begin by distinguishing and classifying by means of
names or by giving to the old ones a more precise meaning.
Language is the body of the mind, the material by which all human
science can be built up.
The difference between the human mind and the animal mind was
very aptly shown by Schopenhauer. This citation is quoted by
Kautsky in his “Ethics and the Materialist Conception of History”
(pages 139–40 English Translation). The animal’s actions are
dependent upon visual motives, it is only by these that it sees, hears
or observes in any other way. We can always tell what induced the
animal to do this or the other act, for we, too, can see it if we look.
With man, however, it is entirely different. We can not foretell what
he will do, for we do not know the motives that induce him to act;
they are thoughts in his head. Man considers, and in so doing, all his
knowledge, the result of former experience, comes into play, and it is
then that he decides how to act. The acts of an animal depend upon
immediate impression, while those of man depend upon abstract
conceptions, upon his thinking and perceiving. Man is at the same
time influenced by finer invisible motives. Thus all his movements
bear the impress of being guided by principles and intentions which
give them the appearance of independence and obviously
distinguishes them from those of animals.
Owing to their having bodily wants, men and animals are forced to
seek to satisfy them in the natural objects surrounding them. The
impression on the mind is the immediate impulse and beginning; the
satisfaction of the wants is the aim and end of the act. With the
animal, action follows immediately after impression. It sees its prey
or food and immediately it jumps, grasps, eats, or does that which is
necessary for grasping, and this is inherited as an instinct. The
animal hears some hostile sound, and immediately it runs away if its
legs are so developed to run quickly, or lies down like dead so as not
to be seen if its color serves as a protector. Between man’s
impressions and acts, however, there comes into his head a long
chain of thoughts and considerations. His actions will depend upon
the result of these considerations.
Whence comes this difference? It is not hard to see that it is
closely associated with the use of tools. In the same manner that
thought arises between man’s impressions and acts, the tool comes
in between man and that which he seeks to attain. Furthermore,
since the tool stands between man and outside objects, thought
must arise between the impression and the performance. Man does
not start empty-handed against his enemy or tear down fruit, but he
goes about it in a roundabout manner, he takes a tool, a weapon
(weapons are also tools) which he uses against the hostile animal;
therefore his mind must also make the same circuit, not follow the
first impressions, but it must think of the tools and then follow to the
object. This material circuit causes the mental circuit; the thoughts
leading to a certain act are the result of the tools necessary for the
performance of the act.
Here we took a very simple case of primitive tools and the first
stages of mental development. The more complicated technique
becomes, the greater is the material circuit, and as a result the mind
has to make greater circuits. When each made his own tools, the
thought of hunger and struggle must have directed the human mind
to the making of tools. Here we have a longer chain of thoughts
between the impressions and the ultimate satisfaction of men’s
needs. When we come down to our own times, we find that this
chain is very long and complicated. The worker who is discharged
foresees the hunger that is bound to come; he buys a newspaper in
order to see whether there is any demand for laborers; he goes to
the railroad, offers himself for a wage which he will get only long
afterwards, so that he may be in a position to buy food and thus
protect himself from starvation. What a long circuitous chain the
mind must make before it reaches its destiny. But it agrees with our
highly developed technique, by means of which man can satisfy his
wants.
Man, however, does not rule over one tool only, but over many,
which he applies for different purposes, and from which he can
choose. Man, because of these tools, is not like the animal. The
animal never advances beyond the tools and weapons with which it
was born, while man makes his tools and changes them at will. Man,
being an animal using different tools, must possess the mental ability
to choose them. In his head various thoughts come and go, his mind
considers all the tools and the consequences of their application,
and his actions depend upon these considerations. He also
combines one thought with another, and holds fast to the idea that
fits in with his purpose.
Animals have not this capacity; it would be useless for them for
they would not know what to do with it. On account of their bodily
form, their actions are circumscribed within narrow bounds. The lion
can only jump upon his prey, but can not think of catching it by
running after it. The hare is so formed that it can run; it has no other
means of defense although it may like to have. These animals have
nothing to consider except the moment of jumping or running. Every
animal is so formed as to fit into some definite place. Their actions
must become strong habits. These habits are not unchangeable.
Animals are not machines, when brought into different
circumstances they may acquire different habits. It is not in the
quality of their brains, but in the formation of their bodies that animal
restrictions lie. The animal’s action is limited by its bodily form and
surroundings, and consequently it has little need for reflection. To
reason would therefore be useless for it and would only lead to harm
rather than to good.
Man, on the other hand, must possess this ability because he
exercises discretion in the use of tools and weapons, which he
chooses according to particular requirements. If he wants to kill the
fleet hare, he takes the bow and arrow; if he meets the bear, he uses
the axe, and if he wants to break open a certain fruit he takes a
hammer. When threatened by danger, man must consider whether
he shall run away or defend himself by fighting with weapons. This
ability to think and to consider is indispensable to man in his use of
artificial tools.
This strong connection between thoughts, language, and tools,
each of which is impossible without the other, shows that they must
have developed at the same time. How this development took place,
we can only conjecture. Undoubtedly it was a change in the
circumstances of life that changed men from our ape-like ancestors.
Having migrated from the woods, the original habitat of apes, to the
plain, man had to undergo an entire change of life. The difference
between hands and feet must have developed then. Sociability and
the ape-like hand, well adapted for grasping, had a due share in the
new development. The first rough objects, such as stones or sticks,
came to hand unsought, and were thrown away. This must have
been repeated so often that it must have left an impression on the
minds of those primitive men.
To the animal, surrounding nature is a single unit, of the details of
which it is unconscious. It can not distinguish between various
objects. Our primitive man, at his lowest stage, must have been at
the same level of consciousness. From the great mass surrounding
him, some objects (tools) come into his hands which he used in
procuring his existence. These tools, being very important objects,
soon were given some designation, were designated by a sound
which at the same time named the particular activity. Owing to this
sound, or designation, the tool and the particular kind of activity
stands out from the rest of the surroundings. Man begins to analyze
the world by concepts and names, self-consciousness makes its
appearance, artificial objects are purposely sought and knowingly
made use of while working.
This process—for it is a very slow process—marks the beginning
of our becoming men. As soon as men deliberately seek and apply
certain tools, we can say that these are being developed; from this
stage to the manufacturing of tools, there is only one step. The first
crude tools differ according to use; from the sharp stone we get the
knife, the bolt, the drill, and the spear; from the stick we get the
hatchet. With the further differentiation of tools, serving later for the
division of labor, language and thought develop into richer and newer
forms, while thought leads man to use the tools in a better way, to
improve old and invent new ones.
So we see that one thing brings on the other. The practice of
sociability and the application to labor are the springs in which
technique, thought, tools and science have their origin and
continually develop. By his labor, the primitive ape-like man has risen
to real manhood. The use of tools marks the great departure that is
ever more widening between men and animals.
 IX. ANIMAL ORGANS AND HUMAN
TOOLS.
In animal organs and human tools we have the main difference
between men and animals. The animal obtains its food and subdues
its enemies with its own bodily organs; man does the same thing
with the aid of tools. Organ (organon) is a Greek word which also
means tools. Organs are natural, adnated (grown-on) tools of the
animal. Tools are the artificial organs of men. Better still, what the
organ is to the animal, the hand and tool is to man. The hands and
tools perform the functions that the animal must perform with its own
organs. Owing to the construction of the hand to hold various tools, it
becomes a general organ adapted to all kinds of work; it becomes
therefore an organ that can perform a variety of functions.
With the division of these functions, a broad field of development
is opened for men which animals do not know. Because the human
hand can use various tools, it can combine the functions of all
possible organs possessed by animals. Every animal is built and
adapted to a certain definite surrounding. Man, with his tools, is
adapted to all circumstances and equipped for all surroundings. The
horse is built for the prairie, and the monkey is built for the forest. In
the forest, the horse would be just as helpless as the monkey would
be if brought to the prairie. Man, on the other hand, uses the axe in
the forest, and the spade on the prairie. With his tools, man can
force his way in all parts of the world and establish himself all over.
While almost all animals can live in particular regions, such as
supply their wants, and if taken to different regions cannot exist, man
has conquered the whole world. Every animal has, as a zoölogist
expressed it once, its strength by which means it maintains itself in
the struggle for existence, and its weakness, owing to which it falls a
prey to others and cannot multiply itself. In this sense, man has only
strength and no weakness. Owing to his having tools, man is the
equal of all animals. As these tools do not remain stationary, but
continually improve, man grows above every animal. His tools make
him master of all creation, the king of the earth.
In the animal world there is also a continuous development and
perfection of organs. This development, however, is connected with
the changes of the animal’s body, which makes the development of
the organs infinitely slow, as dictated by biological laws. In the
development of the organic world, thousands of years amount to
nothing. Man, however, by transferring his organic development
upon external objects has been able to free himself from the chain of
biologic law. Tools can be transformed quickly, and technique makes
such rapid strides that, in comparison with the development of
animal organs, it must be called marvelous. Owing to this new road,
man has been able, within the short period of a few thousand years,
to rise above the highest animal. With the invention of these
implements, man got to be a divine power, and he takes possession
of the earth as his exclusive dominion. The peaceful and hitherto
unhindered development of the organic world ceases to develop
according to the Darwinian theory. It is man that acts as breeder,
tamer, cultivator; and it is man that does the weeding. It is man that
changes the entire environment, making the further forms of plants
and animals suit his aim and will.
With the origin of tools, further changes in the human body cease.
The human organs remain what they were, with the exception of the
brain. The human brain had to develop together with tools; and, in
fact, we see that the difference between the higher and lower races
of mankind consists mainly in the contents of their brains. But even
the development of this organ had to stop at a certain stage. Since
the beginning of civilization, the functions of the brain are ever more
taken away by some artificial means; science is treasured up in
books. Our reasoning faculty of today is not much better than the
one possessed by the Greeks, Romans or even the Teutons, but our
knowledge has grown immensely, and this is greatly due to the fact
that the mental organ was unburdened by its substitutes, the books.
Having learned the difference between men and animals, let us
now again consider how they are affected by the struggle for
existence. That this struggle is the cause of perfection and the
weeding out of the imperfect, can not be denied. In this struggle the
animals become ever more perfect. Here, however, it is necessary to
be more precise in expression and in observation of what perfection
consists. In being so, we can no longer say that animals as a whole
struggle and become perfected. Animals struggle and compete by
means of their particular organs. Lions do not carry on the struggle
by means of their tails; hares do not rely on their eyes; nor do the
falcons succeed by means of their beaks. Lions carry on the struggle
by means of their saltatory (leaping) muscles and their teeth; hares
rely upon their paws and ears, and falcons succeed on account of
their eyes and wings. If now we ask what is it that struggles and what
competes? the answer is, the organs struggle. The muscles and
teeth of the lion, the paws and ears of the hare, and the eyes and
wings of the falcon carry on the struggle. It is in this struggle that the
organs become perfected. The animal as a whole depends upon
these organs and shares their fate.
Let us now ask the same question about the human world. Men do
not struggle by means of their natural organs, but by means of
artificial organs, by means of tools (and in weapons we must
understand tools). Here, too, the principle of perfection and the
weeding out of the imperfect, through struggle, holds true. The tools
struggle, and this leads to the ever greater perfection of tools. Those
groups of tribes that use better tools and weapons can best secure
their maintenance, and when it comes to a direct struggle with
another race, the race that is better equipped with artificial tools will
win. Those races whose technical aids are better developed, can
drive out or subdue those whose artificial aids are not developed.
The European race dominates because its external aids are better.
Here we see that the principle of the struggle for existence,
formulated by Darwin and emphasized by Spencer, has a different
effect on men than on animals. The principle that struggle leads to
the perfection of the weapons used in the strife, leads to different
results between men and animals. In the animal, it leads to a
continuous development of natural organs; that is the foundation of
the theory of descent, the essence of Darwinism. In men, it leads to
a continuous development of tools, of the means of production. This,
however, is the foundation of Marxism.
Here we see that Marxism and Darwinism are not two independent
theories, each of which applies to its special domain, without having
anything in common with the other. In reality, the same principle
underlies both theories. They form one unit. The new course taken
by men, the substitution of tools for natural organs, causes this
fundamental principle to manifest itself differently in the two domains;
that of the animal world to develop according to Darwinian principle,
while among mankind the Marxian principle applies.
When men freed themselves from the animal world, the
development of tools and productive methods, the division of labor
and knowledge became the propelling force in social development. It
is these that brought about the various systems, such as primitive
communism, the peasant system, the beginnings of commodity
production, feudalism, and now modern capitalism, and which bring
us ever nearer to Socialism.
 X. CAPITALISM AND SOCIALISM.
The particular form that the Darwinian struggle for existence
assumes in development is determined by men’s sociability and their
use of tools. The struggle for existence, while it is still carried on
among members of different groups, nevertheless ceases among
members of the same group, and its place is taken by mutual aid
and social feeling. In the struggle between groups, technical
equipment decides who shall be the victor; this results in the
progress of technique. These two circumstances lead to different
effects under different systems. Let us see in what manner they work
out under capitalism.
When the bourgeoisie gained political power and made the
capitalist system the dominating one, it began by breaking the feudal
bonds and freeing the people from all feudal ties. It was essential for
capitalism that every one should be able to take part in the
competitive struggle; that no one’s movements be tied up or
narrowed by corporate duties or hampered by legal statutes, for only
thus was it possible for production to develop its full capacity. The
workers must have free command over themselves and not be tied
up by feudal or guild duties, for only as free workers can they sell
their labor-power to the capitalists as a whole commodity, and only
as free laborers can the capitalists use them. It is for this reason that
the bourgeoisie has done away with all old ties and duties. It made
the people entirely free, but at the same time left them entirely
isolated and unprotected. Formerly the people were not isolated;
they belonged to some corporation; they were under the protection
of some lord or commune, and in this they found strength. They were
a part of a social group to which they owed duties and from which
they received protection. These duties the bourgeoisie abolished; it
destroyed the corporations and abolished the feudal relations. The
freeing of labor meant at the same time that all refuge was taken
away from him and that he could no longer rely upon others. Every
one had to rely upon himself. Alone, free from all ties and protection,
he must struggle against all.
It is for this reason that, under capitalism, the human world
resembles mostly the world of rapacious animals, and it is for this
very reason that the bourgeois Darwinists looked for men’s prototype
among animals living isolated. To this they were led by their own
experience. Their mistake, however, consisted in considering
capitalist conditions as everlasting. The relation existing between our
capitalist competitive system and animals living isolated, was thus
expressed by Engels in his book, “Anti-Dühring” (page 293). This
may also be found on page 59 of “Socialism, Utopian and Scientific”
as follows:
“Finally, modern industry and the opening of the world market
made the struggle universal and at the same time gave it unheard-of
virulence. Advantages in natural or artificial conditions of production
now decide the existence or non-existence of individual capitalists as
well as of whole industries and countries. He that falls is
remorselessly cast aside. It is the Darwinian struggle of the individual
for existence transferred from Nature to society with intensified
violence. The conditions of existence natural to the animal appear as
the final term of human development.”
What is that which carries on the struggle in this capitalist
competition, the perfectness of which decides the victory?
First come technical tools, machines. Here again applies the law
that struggle leads to perfection. The machine that is more improved
outstrips the less improved, the machines that cannot perform much,
and the simple tools are exterminated and machine technique
develops with gigantic strides to ever greater productivity. This is the
real application of Darwinism to human society. The particular thing
about it is that under capitalism there is private property, and behind
every machine there is a man. Behind the gigantic machine there is
a big capitalist and behind the small machine there is a small
capitalist. With the defeat of the small machine, the small capitalist,
as capitalist, perishes with all his hopes and happiness.
 At the same time the struggle is a race of capital. Large capital is
better equipped; large capital is getting ever larger. This
concentration of capital undermines capital itself, for it diminishes the
bourgeoisie whose interest it is to maintain capitalism, and it
increases that mass which seeks to abolish it. In this development,
one of the characteristics of capitalism is gradually abolished. In the
world where each struggles against all and all against each, a new
association develops among the working class, the class
organization. The working class organizations start with ending the
competition existing between workers and combine their separate
powers into one great power in their struggle with the outside world.
Everything that applies to social groups also applies to this class
organization, brought about by natural conditions. In the ranks of this
class organization, social motives, moral feelings, self-sacrifice and
devotion for the entire body develop in a most splendid way. This
solid organization gives to the working class that great strength
which it needs in order to conquer the capitalist class. The class
struggle which is not a struggle with tools but for the possession of
tools, a struggle for the right to direct industry, will be determined by
the strength of the class organization.
Let us now look at the future system of production as carried on
under Socialism. The struggle leading to the perfection of the tools
does not cease. As before under capitalism, the inferior machine will
be outdistanced and brushed aside by the one that is superior. As
before, this process will lead to greater productivity of labor. But
private property having been abolished, there will no longer be a
man behind each machine calling it his own and sharing its fate.
Machines will be common property, and the displacement of the less
developed by the better developed machinery will be carried out
upon careful consideration.
With the abolition of classes the entire civilized world will become
one great productive community. Within this community mutual
struggle among members will cease and will be carried on with the
outside world. It will no longer be a struggle against our own kind,
but a struggle for subsistence, a struggle against nature. But owing
to development of technique and science, this can hardly be called a
struggle. Nature is subject to man and with very little exertion from
his side she supplies him with abundance. Here a new career opens
for man: man’s rising from the animal world and carrying on his
struggle for existence by the use of tools, ceases, and a new chapter
of human history begins.
 Library of Science for the Workers
To understand modern Socialism, you must understand Evolution.
Socialists predict the speedy end of the capitalist system as a result
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 The Origin of the Family
PRIVATE PROPERTY AND THE STATE
By Frederick Engels

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UTOPIAN AND SCIENTIFIC
By Frederick Engels

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 CHARLES H. KERR & COMPANY
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 CAPITAL
A Critique of Political Economy
By Karl Marx

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