“Thomas Jefferson to Isaac McPherson, 13 August 1813”, 1813-08-13 ():
[response by Thomas Jefferson to an 1813-08-03 letter from Isaac McPherson, discussing the enforcement by Oliver Evans of his patent on drills for mills, and why Jefferson believes that patent invalid & immoral, and what the moral basis of copyright is; cf. the Copyright Clause of the American Constitution] …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’s 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’s 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.
…It has been pretended by some (and in England especially) that inventors have a natural and exclusive right to their inventions; & 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 inventions. 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 we copied 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 & 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 authorised 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 he 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 3 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’s patent would have been refused: 1. because it was a mere change of application of the chain pump, from raising water to raise wheat. 2. because the using a leathern, instead of a hempen band, was a mere change of material: and 3. 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 everyone might know when his actions were safe and lawful. Instead of refusing a patent in the first instance, as the board was authorised 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 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 harassment by lawsuits. 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’s 1st and 2nd patents. I was living in Washington, and left the construction of the mill entirely to the mill wright. I did not even know he had erected elevators, conveyors, and hopper-boys, until I learnt it by an application from Mr Evans’s agent for the patent price. Altho’ 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 & ideas which occur to me on this subject. I have done it without reserve…