<nettime> No Patents On Ideas

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SIR, -- Your letter of August 3d asking information on the subject of Mr.
Oliver Evans' exclusive right to the use of what he calls his Elevators,
Conveyers, and Hopper-boys, has been duly received. My wish to see new
inventions encouraged, and old ones brought again into useful notice, has
made me regret the circumstances which have followed the expiration of his
first patent. I did not expect the retrospection which has been given to
the reviving law. For although the second proviso seemed not so clear as it
ought to have been, yet it appeared susceptible of a just construction; and
the retrospective one being contrary to natural right, it was understood to
be a rule of law that where the words of a statute admit of two
constructions, the one just and the other unjust, the former is to be given
them. The first proviso takes care of those who had lawfully used Evans'
improvements under the first patent; the second was meant for those who had
lawfully erected and used them after that patent expired, declaring they
"should not be liable to damages therefor." These words may indeed be
restrained to uses already past, but as there is parity of reason for those
to come, there should be parity of law. Every man should be protected in
his lawful acts, and be certain that no ex post facto law shall punish or
endamage him for them. But he is endamaged, if forbidden to use a machine
lawfully erected, at considerable expense, unless he will pay a new and
unexpected price for it. The proviso says that he who erected and used
lawfully should not be liable to pay damages. But if the proviso had been
omitted, would not the law, construed by natural equity, have said the same
thing. In truth both provisos are useless. And shall useless provisos,
inserted pro majori cautela only, authorize inferences against justice? The
sentiment that ex post facto laws are against natural right, is so strong
in the United States, that few, if any, of the State constitutions have
failed to proscribe them. The federal constitution indeed interdicts them
in criminal cases only; but they are equally unjust in civil as in criminal
cases, and the omission of a caution which would have been right, does not
justify the doing what is wrong. Nor ought it to be presumed that the
legislature meant to use a phrase in an unjustifiable sense, if by rules of
construction it can be ever strained to what is just. The law books abound
with similar instances of the care the judges take of the public integrity.
Laws, moreover, abridging the natural right of the citizen, should be
restrained by rigorous constructions within their narrowest limits. Your
letter, however, points to a much broader question, whether what have
received from Mr. Evans the new and proper name of Elevators, are of his
invention. Because, if they are not, his patent gives him no right to
obstruct others in the use of what they possessed before. I assume it is a
Lemma, that it is the invention of the machine itself, which is to give a
patent right, and not the application of it to any particular purpose, of
which it is susceptible. If one person invents a knife convenient for
pointing our pens, another cannot have a patent right for the same knife to
point our pencils. A compass was invented for navigating the sea; another
could not have a patent right for using it to survey land. A machine for
threshing wheat has been invented in Scotland; a second person cannot get a
patent right for the same machine to thresh oats, a third rye, a fourth
peas, a fifth clover, &c. A string of buckets is invented and used for
raising water, ore, &c., can a second have a patent right to the same
machine for raising wheat, a third oats, a fourth rye, a fifth peas, &c?
The question then whether such a string of buckets was invented first by
Oliver Evans, is a mere question of fact in mathematical history. Now,
turning to such books only as I happen to possess, I find abundant proof
that this simple machinery has been in use from time immemorial. Doctor
Shaw, who visited Egypt and the Barbary coast in the years 1727-8-9, in the
margin of his map of Egypt, gives us the figure of what he calls a Persian
wheel, which is a string of round cups or buckets hanging on a pully, over
which they revolved, bringing up water from a well and delivering it into a
trough above. He found this used at Cairo, in a well 264 feet deep, which
the inhabitants believe to have been the work of the patriarch Joseph.
Shaw's travels, 341, Oxford edition of 1738 in folio, and the Universal
History, I. 416, speaking of the manner of watering the higher lands of
Egypt, says, "formerly they made use of Archimedes's screw, thence named
the Egyptian pump, but they now generally use wheels (wallowers) which
carry a rope or chain of earthen pots holding about seven or eight quarts
apiece, and draw the water from the canals. There are besides a vast number
of wells in Egypt, from which the water is drawn in the same manner to
water the gardens and fruit trees; so that it is no exaggeration to say,
that there are in Egypt above 200,000 oxen daily employed in this labor."
Shaw's name of Persian wheel has been since given more particularly to a
wheel with buckets, either fixed or suspended on pins, at its periphery.
Mortimer's husbandry, I. 18, Duhamel III. II., Ferguson's Mechanic's plate,
XIII; but his figure, and the verbal description of the Universal History,
prove that the string of buckets is meant under that name. His figure
differs from Evans' construction in the circumstances of the buckets being
round, and strung through their bottom on a chain. But it is the principle,
to wit, a string of buckets, which constitutes the invention, not the form
of the buckets, round, square, or hexagon; nor the manner of attaching
them, nor the material of the connecting band, whether chain, rope, or
leather. Vitruvius, L. x. c. 9, describes this machinery as a windlass, on
which is a chain descending to the water, with vessels of copper attached
to it; the windlass being turned, the chain moving on it will raise the
vessel, which in passing over the windlass will empty the water they have
brought up into a reservoir. And Perrault, in his edition of Vitruvius,
Paris, 1684, fol. plates 61, 62, gives us three forms of these water
elevators, in one of which the buckets are square, as Mr. Evans' are.
Bossut, Histoire de Mathematiques, i. 86, says, "the drum wheel, the wheel
with buckets and the Chapelets, are hydraulic machines which come to us
from the ancients. But we are ignorant of the time when they began to be
put into use." The Chapelets are the revolving bands of the buckets which
Shaw calls the Persian wheel, the moderns a chain-pump, and Mr. Evans
elevators. The next of my books in which I find these elevators is Wolf's
Cours de Mathematiques, i. 370, and plate 1, Paris 1747, 8vo; here are two
forms. In one of them the buckets are square, attached to two chains,
passing over a cylinder or wallower at top, and under another at bottom, by
which they are made to revolve. It is a nearly exact representation of
Evans' Elevators. But a more exact one is to be seen in Desagulier's
Experimental Philosophy, ii. plate 34; in the Encyclopedie de Diderot et
D'Alembert, 8vo edition of Lansanne, 1st volume of plates in the four
subscribed Hydraulique. Norie, is one where round eastern pots are tied by
their collars between two endless ropes suspended on a revolving lantern or
wallower. This is said to have been used for raising ore out of a mine. In
a book which I do not possess, L'Architecture Hidraulique de Belidor, the
2d volume of which is said [De la Lande's continuation of Montuclas'
Historie de Mathematiques, iii. 711] to contain a detail of all the pumps,
ancient and modern, hydraulic machines, fountains, wells, &c, I have no
doubt this Persian wheel, chain pump, chapelets, elevators, by whichever
name you choose to call it, will be found in various forms. The last book I
have to quote for it is Prony's Architecture Hydraulique i., Avertissement
vii., and 648, 649, 650. In the latter of which passages he observes that
the first idea which occurs for raising water is to lift it in a bucket by
hand. When the water lies too deep to be reached by hand, the bucket is
suspended by a chain and let down over a pulley or windlass. If it be
desired to raise a continued stream of water, the simplest means which
offers itself to the mind is to attach to an endless chain or cord a number
of pots or buckets, so disposed that, the chain being suspended on a
lanthorn or wallower above, and plunged in water below, the buckets may
descend and ascend alternately, filling themselves at bottom and emptying
at a certain height above, so as to give a constant stream. Some years
before the date of Mr. Evans' patent, a Mr. Martin of Caroline county in
this State, constructed a drill-plough, in which he used the band of
buckets for elevating the grain from the box into the funnel, which let
them down into the furrow. He had bands with different sets of buckets
adapted to the size of peas, of turnip seed, &c. I have used this machine
for sowing Benni seed also, and propose to have a band of buckets for
drilling Indian Corn, and another for wheat. Is it possible that in doing
this I shall infringe Mr. Evans' patent? That I can be debarred of any use
to which I might have applied my drill, when I bought it, by a patent
issued after I bought it?  These verbal descriptions, applying so exactly
to Mr. Evans' elevators, and the drawings exhibited to the eye, flash
conviction both on reason and the senses that there is nothing new in these
elevators but their being strung together on a strap of leather. If this
strap of leather be an invention, entitling the inventor to a patent right,
it can only extend to the strap, and the use of the string of buckets must
remain free to be connected by chains, ropes, a strap of hempen girthing,
or any other substance except leather. But, indeed, Mr. Martin had before
used the strap of leather. 

The screw of Archimedes is as ancient, at least, as the age of that
mathematician, who died more than 2,000 years ago. Diodorus Siculus speaks
of it, L.  i., p. 21, and L. v., p. 217, of Stevens' edition of 1559,
folio; and Vitruvius, xii. The cutting of its spiral worm into sections for
conveying flour or grain, seems to have been an invention of Mr. Evans, and
to be a fair subject of a patent right. But it cannot take away from others
the use of Archimedes' screw with its perpetual spiral, for any purposes of
which it is susceptible. 

The hopper-boy is an useful machine, and so far as I know, original. 

It has been pretended by some, (and in England especially,) that inventors
have a natural and exclusive right to their inventions, and not merely for
their own lives, but inheritable to their heirs. But while it is a moot
question whether the origin of any kind of property is derived from nature
at all, it would be singular to admit a natural and even an hereditary
right to inventors. It is agreed by those who have seriously considered the
subject, that no individual has, of natural right, a separate property in
an acre of land, for instance. By an universal law, indeed, whatever,
whether fixed or movable, belongs to all men equally and in common, is the
property for the moment of him who occupies it; but when he relinquishes
the occupation, the property goes with it. Stable ownership is the gift of
social law, and is given late in the progress of society. It would be
curious then, if an idea, the fugitive fermentation of an individual brain,
could, of natural right, be claimed in exclusive and stable property. If
nature has made any one thing less susceptible than all others of exclusive
property, it is the action of the thinking power called an idea, which an
individual may exclusively possess as long as he keeps it to himself; but
the moment it is divulged, it forces itself into the possession of every
one, and the receiver cannot dispossess himself of it. Its peculiar
character, too, is that no one possesses the less, because every other
possesses the whole of it. He who receives an idea from me, receives
instruction himself without lessening mine; as he who lights his taper at
mine, receives light without darkening me. That ideas should freely spread
from one to another over the globe, for the moral and mutual instruction of
man, and improvement of his condition, seems to have been peculiarly and
benevolently designed by nature, when she made them, like fire, expansible
over all 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. Inventions then cannot, in nature,
be a subject of property. Society may give an exclusive right to the
profits arising from them, as an encouragement to men to pursue ideas which
may produce utility, but this may or may not be done, according to the will
and convenience of the society, without claim or complaint from any body.
Accordingly, it is a fact, as far as I am informed, that England was, until
wecopied her, the only country on earth which ever, by a general law, gave
a legal right to the exclusive use of an idea. In some other countries it
is sometimes done, in a great case, and by a special and personal act, but,
generally speaking, other nations have thought that these monopolies
produce more embarrassment than advantage to society; and it may be
observed that the nations which refuse monopolies of invention, are as
fruitful as England in new and useful devices. 

Considering the exclusive right to invention as given not of natural right,
but for the benefit of society, I know well the difficulty of drawing a
line between the things which are worth to the public the embarrassment of
an exclusive patent, and those which are not. As a member of the patent
board for several years, while the law authorized a board to grant or
refuse patents, I saw with what slow progress a system of general rules
could be matured. Some, however, were established by that board. One of
these was, that a machine of which we were possessed, might be applied by
every man to any use of which it is susceptible, and that this right ought
not to be taken from him and given to a monopolist, because the first
perhaps had occasion so to apply it. Thus a screw for crushing plaster
might be employed for crushing corn-cobs. And a chain-pump for raising
water might be used for raising wheat: this being merely a change of
application. Another rule was that a change of material should not give
title to a patent. As the making a ploughshare of cast rather than of
wrought iron; a comb of iron instead of horn or of ivory, or the connecting
buckets by a band of leather rather than of hemp or iron. A third was that
a mere change of form should give no right to a patent, as a high-quartered
shoe instead of a low one; a round hat instead of a three-square; or a
square bucket instead of a round one. But for this rule, all the changes of
fashion in dress would have been under the tax of patentees. These were
among the rules which the uniform decisions of the board had already
established, and under each of them Mr. Evans' patent would have been
refused. First, because it was a mere change of application of the
chain-pump, from raising water to raise wheat. Secondly, because the using
a leathern instead of a hempen band, was a mere change of material; and
thirdly, square buckets instead of round, are only a change of form, and
the ancient forms, too, appear to have been indifferently square or round.
But there were still abundance of cases which could not be brought under
rule, until they should have presented themselves under all their aspects;
and these investigations occupying more time of the members of the board
than they could spare from higher duties, the whole was turned over to the
judiciary, to be matured into a system, under which every one might know
when his actions were safe and lawful. Instead of refusing a patent in the
first instance, as the board was authorized to do, the patent now issues of
course, subject to be declared void on such principles as should be
established by the courts of law. This business, however, is but little
analogous to their course of reading, since we might in vain turn over all
the lubberly volumes of the law to find a single ray which would lighten
the path of the mechanic or the mathematician. It is more within the
information of a board of academical professors, and a previous refusal of
patent would better guard our citizens against harrassment by law-suits.
But England had given it to her judges, and the usual predominancy of her
examples carried it to ours. 

It happened that I had myself a mill built in the interval between Mr.
Evans' first and second patents. I was living in Washington, and left the
construction to the mill-wright. I did not even know he had erected
elevators, conveyers and hopper-boys, until I learnt it by an application
from Mr. Evans' agent for the patent price. Although I had no idea he had a
right to it by law, (for no judicial decision had then been given,) yet I
did not hesitate to remit to Mr. Evans the old and moderate patent price,
which was what he then asked, from a wish to encourage even the useful
revival of ancient inventions.  But I then expressed my opinion of the law
in a letter, either to Mr. Evans or to his agent. 

I have thus, Sir, at your request, given you the facts and ideas which
occur to me on this subject. I have done it without reserve, although I
have not the pleasure of knowing you personally. In thus frankly committing
myself to you, I trust you will feel it as a point of honor and candor, to
make no use of my letter which might bring disquietude on myself. And
particularly, I should be unwilling to be brought into any difference with
Mr. Evans, whom, however, I believe too reasonable to take offence at an
honest difference of opinion. I esteem him much, and sincerely wish him
wealth and honor. I deem him a valuable citizen, of uncommon ingenuity and
usefulness. And had I not esteemed still more the establishment of sound
principles, I should now have been silent. If any of the matter I have
offered can promote that object, I have no objection to its being so used;
if it offers nothing new, it will of course not be used at all. I have gone
with some minuteness into the mathematical history of the elevator, because
it belongs to a branch of science in which, as I have before observed, it
is not incumbent on lawyers to be learned; and it is possible, therefore,
that some of the proofs I have quoted may have escaped on their former
arguments. On the law of the subject I should not have touched, because
more familiar to those who have already discussed it; but I wished to state
my own view of it merely in justification of myself, my name and
approbation being subscribed to the act. With these explanations, accept
the assurance of my respect. 

The Letters of Thomas Jefferson: 1743-1826
http://odur.let.rug.nl/~usa/P/tj3/writings/brf/jefl220.htm

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