Principles of patents and patents of principle

The earliest secondary account of Brunel's attitude to patents was in the biography produced by his son Isambard Brunel, which presented a number of documents and episodes that have remained standard resources in dealing with the topic. These included the memo that Brunel wrote for his appearance before the Select Committee of the House of Lords on the Patent Law Amendment Act in 1851, a contribution that Brunel made to a discussion on patents at a meeting of the Society of Arts in 1856, materials relating to Brunel's refusal to patent his invention of the polygonal rifle barrel and Joseph Whitworth's claiming of it, and so on.Footnote ¹³ This source and L. T. C. Rolt's account of ‘Brunel against bureaucracy’ have set the tone for most of the subsequent discussions.Footnote ¹⁴

Rolt describes Brunel's attitude to patents in this way: ‘The Patent Laws were one of his anathemas, for it was his belief that, by enabling astute firms or individuals to take out patents of principle, they stifled invention instead of encouraging it’.Footnote ¹⁵ According to Rolt, Brunel ‘obstinately refused’ to take out patents himself and this is illustrated by the example of the rifle barrel design. That example is used, presumably, not because it was an important or typical example of Brunel's reluctance to patent. Of all the things that he might have patented but did not, it is surely one of the least significant. But the example enables Rolt to retail Brunel's quip on being told that his rifle infringed Whitworth's patent: ‘What is it exactly that he does patent? It cannot be merely the polygon.’ This reinforces the notion that what Brunel objected to was what he regarded as the absurdity of the patenting of principles. What this meant, Rolt does not fully explain. The very brief discussion of Brunel and patents then moves on to examine his hatred of bureaucracy. The contention is that Brunel's views on patents were a subset of his larger concern with bureaucracy. Both were symptoms of what we might call Brunel's ‘hyper-individualism’: ‘Even in an age of individualism, Brunel's public life was remarkable for his roundly expressed hatred of government officials, and of any law, rule or regulation which interfered with individual responsibility or initiative.’Footnote ¹⁶ The impression given by Rolt is that Brunel's stance on patents, his forthright views expressed to royal commissions on railways about their ‘regrettable tendency to legislate and to rule’ and his scorn for the way Admiralty officials in particular did (or failed to do) business were all grounded in Brunel's principled individualism.Footnote ¹⁷

The other substantial account of these questions is that provided by Angus Buchanan,Footnote ¹⁸ who once again locates Brunel's patent abolitionism in his adoption of the laissez-faire principles of economic liberalism. Indeed, Buchanan points out, Brunel perhaps ought to be seen as more of a purist than most of his engineering colleagues. He ‘remained with the ideological rearguard’ even as others shifted their ground. Many economic liberals began to see some careful state intervention as necessary to prevent the formation of monopolies in an entirely unregulated environment. Truly free trade might need a measure of state intervention to protect it. According to Buchanan, however, Brunel was never tempted by such ideas. So whilst his colleagues most often sought reform of the patent system (notably to make patents cheaper and so more nearly open to all) Brunel argued for their abolition before the House of Lords Select Committee in 1851 and before the Society of Arts in 1856. In considering the case of the adoption of the patented screw propeller (of which more below), Buchanan resists Andrew Lambert's suggestion that Brunel's ideological stance against Admiralty bureaucracy was less firm than usually thought, and perhaps was even influenced by others.

So, overall, the best accounts of Brunel's life and work have located his views on patents in political principles formed early. In the next section I will examine in some detail Brunel's experience with patents. Before doing so, however, it is worth considering two other matters: the issue of the principles of patents and of patents of principle and the matter of Brunel's inventive persona. Understanding these better will enable a more complete interpretation of Brunel's patent experience.

Let us take the issue of patents of principle first. Rolt claims, as we have seen, that Brunel objected to patents because it was possible for patents of principle to be taken out. The idea here is that if a patent were specified abstractly and broadly enough then it would prevent others from further improving the product or process that it covers. This is because all manner of realizations and modifications of the product or process would be covered by the patent and so any action by others to improve it would be blocked, potentially, as infringements. According to Rolt, it was such practices that Brunel found objectionable and which led him to oppose the granting of patents at all. Now, patents of principle were not allowed under the patent law, which required that the specification be of a practical product or process. But because there was no procedure for examination of patents before they were granted, the blocking of patents of principle required litigation, after the fact, in which the inadequacy of the patent specification was tested. If a specification were found to be insufficient for one skilled in the relevant art to bring the invention into practice then the patent could be declared invalid on that ground. I would argue, from a constructivist position, that the distinction between principle and practice is not natural but rather negotiated. The negotiation of that distinction often occurs through legal contest.Footnote ¹⁹ But it can and does also occur more discursively, albeit usually against the background of potential hostile litigation. For this reason we need to see Brunel's concern about patenting principles in the context of his engineering practice. Suffused as it was by Brunel's incredibly fertile invention, that practice could always make a given patent appear to be a patent of abstract principle. The abstractness of a patent was constituted by the gap between its specification and what had to be known and done to secure its successful application. This was a gap that Brunel could and habitually did make wide. We will see that whenever a patent was put before him, even if he liked and admired it, Brunel immediately saw the need to develop it further if it was to be successfully applied. Once those developments had themselves been spelt out, the original patent looked increasingly like one of principle since it had ‘omitted’ all these claimed necessities for its implementation.

We are talking about perceptions here. Perceptions of the status of a patent in this regard were important to the calculations of the patent owner and of the potential user. If a potential user considered a patent susceptible to legal challenge on grounds of insufficiency of the specification he might be emboldened to risk infringement. A patent owner might decide not to try to enforce his rights. Either might negotiate the terms of a license to use the patented invention in light of their perceptions of ultimate enforceability. Brunel did not simply object to patents because they could be cast by the unscrupulous as patents of principle; rather he often tried to make them into, or construct them as, patents of principle in order to devalue them, to bring them more under his control and to subvert any constraints that they otherwise might impose upon him.Footnote ²⁰ If we contextualize patents of principle in this way by seeing them within Brunel's engineering practice, perhaps we should also contextualize Brunel's advocacy of the principles of patent abolitionism. There were, as we will see, occasions when, to an outsider at least, Brunel seems to have behaved expediently rather than in a principled fashion with regard to patents. It was, of course, open to him to interpret his behaviour as conforming to principle, but we do not have to follow him in that.

I have suggested that Brunel's ‘inventive persona’ is another important contributor to the way that he dealt with patents. By ‘inventive persona’ is meant his style and character as an inventive engineer. This has been understood in various ways, most usually by dubbing Brunel an engineer of extraordinary vision or, more recently, as a system-builder. An often-used quotation comes from the period when Brunel was almost overwhelmed by the scale and variety of tasks involved in building the Great Western Railway (GWR). He wrote to Charles Saunders, his closest friend among the directors of that venture,

Rolt interprets this cri de coeur as an insight into the difficulties and challenges that Brunel faced in building the GWR. In one sense the GWR did this to Brunel. But in another sense he did it to the GWR. Rolt suggests that the GWR was ‘the original conception of a single man who must by reason of that originality, keep a finger on every detail’.Footnote ²² Allowing for some hyperbole on Rolt's part, this rings true. With reference to the same passage, Marsden and Smith characterize Brunel as a Hughesian-style system-builder, making the rules from scratch. In their account Brunel was exercising his love of grandeur and pursuing ‘exuberant innovation’ in defiance of the efforts of others to lay down standards for railways. As system-builder Brunel also sought to exercise supreme authority over this and his other projects.Footnote ²³ Brunel's vision, exuberance and sheer courage, even his bravado and ‘technological hubris’, were crucial elements of his heroic status. Although Brunel's undoubted recklessness cost him the highest place in the engineering pantheon of the late nineteenth century, it is part of his appeal to the television age.Footnote ²⁴

Brunel's critics among his contemporaries were given plenty of ammunition to develop a less heroic picture of him:

‘£.s.d’ was presumably so named to remind people of the fortunes lost and at risk in Brunel's hands.

What I am calling Brunel's inventive persona, then, is a particular manifestation of his larger character as an engineer. That persona involved his self-confidence (perhaps egomania), his undoubted inventive abilities and his habit of assuming authority and seizing control. It was to some extent under conscious control and a product of Brunel's ‘self-fashioning’. But it is hard to escape the feeling that it had a compulsive aspect to it. It manifested itself as compulsive inventive activity once Brunel let himself loose on something. His almost maniacal experimentation with wooden and wrought-iron bridges is a more prosaic example of the way in which Brunel ‘never stood still, never rested content with past achievements’.Footnote ²⁶ This, I suggest, was the inventive persona that kicked into gear whenever Brunel decided to take a patented invention seriously.

A man of patent experience?

Whatever principles we might discern in Brunel's patent abolitionism, we need to look no further than the memorandum prepared for his evidence to the 1851 Select Committee to find Brunel's own account of the origins of his attitudes and opinions on patents. This passage has not been given its due by his biographers:

In his evidence before the Select Committee Brunel similarly emphasized his experience as the basis for his views. One way he did this was by stressing that he limited his observations ‘to the present state of things’ so far as patents are concerned. When asked to explain how the patent law had prevented the production of new inventions, as he claimed, Brunel introduced his answer by saying,

So what did Brunel have consistently before his eyes for so long? Here he again helps us. In the course of asserting to the Select Committee his own status as an authoritative witness on the patent question, Brunel cites the following occasions of his exposure to and experience of patenting: direct involvement in the working out of his father's inventions and taking out patents on his father's behalf; giving professional advice to others on patents both jointly with his father and on his own; being involved in a professional capacity in numerous patent disputes; his frequent ‘use of the patents of others’; and finally his own inventive activities pursued, as he puts it, ‘without patents’ and often requiring his defence of them ‘against patents’.Footnote ²⁹ Putting aside the possibility that Brunel was deploying a rhetoric of empiricism here (that is, presenting his principled or ideological views as deriving from experience) let us take him at his word and examine that experience. As the paper proceeds, I will refer back to those elements of his testimony that drew on or related to particular experiences.

Father and son

As is well known, Marc Isambard Brunel enjoyed a very mixed career as an inventor. According to Woodcroft's list he was granted a total of eighteen patents between 1799 and 1825. Six of these, including the important patent on a block-making machine, were concerned with sawmills or with the sawing and working of wood.Footnote ³⁰ Three were for machines involved in writing, drawing and copying. Four were concerned with the handling or working of leather and fabrics. Three were directed at engine improvements and associated mechanical arrangements. One was for his famous tunnelling method, employed in the Thames Tunnel project, and one concerned tin foil.Footnote ³¹ Brunel began to work with his father in 1822 at the age of sixteen, by which time the elder Brunel's patenting career was almost at an end. The son certainly worked on the patent drawings for the steam engine patent of June 1822. He also conducted many of the experiments involved in formulating the specifications of the ‘gaz’ engine project, the subject of Marc Brunel's last patent.Footnote ³²

The extent to which the Brunels worked as professional advisers on patents is difficult to gauge accurately. There is some evidence of joint work on patent court cases. Clements notes that Isambard often held the fort at the office when his father was absent making his frequent appearances as an expert witness in patent actions. There is a report in The Times of the ‘Messrs Brunel’ making an affidavit during an infringement dispute.Footnote ³³ When Brunel first joined his father in these patent-related activities the elder Brunel was not long out of debtor's prison. For all his fertile invention the father was plagued by financial difficulties. Perhaps it struck the son that his father's long list of patented property in invention had not helped him much? Given that Marc's patenting career closed so soon after his son joined him, perhaps its closure is attributable to Brunel's already formed and persuasive scepticism about the value of patents. Certainly, before the Select Committee in 1851 Brunel spoke as if more open communication, earlier in the piece, would have saved his father the needless expense of the patent for a gas engine that proved entirely fruitless:

It seems likely, therefore, that his father's experience predisposed the son against the operation of the patent system. On the basis of a private diary entry made by Brunel on 30 January 1833, Angus Buchanan dates his resolution never to take out patents himself to the final abandonment of his father's ‘gaz’ engine project.Footnote ³⁵ This may well be the case, but these were just the beginnings of Brunel's brushes with patents; his subsequent involvements suggest views still being formed.

The Brunel patent that almost was

As Brunel states, there were many occasions when he used others' patents and inventions in his various projects. There was at least one occasion, previously unnoticed, when Brunel seems to have actively sought a patent. There were others when he almost became involved in taking shares in the patents of others but backed away. More often, though, Brunel was faced by patentees seeking his advice, or his adoption of their inventions as part of one of his major ventures. In these cases, Brunel could be dismissive, and often was. The way in which he managed negotiations about those patents that he did take seriously is very revealing of his developing views and how they related to his engineering persona and practice.

First, however, consider the mystery of the patent that almost was. The epigraphs to this paper indicate that in 1851 Brunel denied ever having even considered patenting anything himself, yet in 1841 he is to be found actively seeking advice from the consulting engineer and patent expert John Farey on how to take a patent out. So what was this putative patent for? And can we solve the mystery as to why Brunel wanted it?

The invention concerned came from a period when Brunel was experimenting fervently with locomotive design. The letter to Farey gives us some clues as to what he was doing. Brunel appeared to want to patent the use of fans to aid the exhaust of the engine. He was aware of patents taken out for fans being used to blow fires, but not their use ‘in lieu of the ordinary blast’.Footnote ³⁶ He told Farey that there was no peculiarity of the fan capable of being patented. What he had done was to experiment with ‘a different proportion of aperture &c than is usually adopted’. At various points in the same letter Brunel described what he had achieved:

His plan was to apply this new method of exhaustion to ‘a new arrangement of locomotives’ on which he was also working, an application that he thought would be ‘very valuable’.

To understand what Brunel was up to here and why the urge to patent came over him we need to review his involvement with locomotive design. Brunel's interventions in such design from the mid-1830s as part of the Great Western Railway scheme are widely seen by his biographers and by students of the history of railways as, to say the least, unfortunate. Nock considers Brunel to be a relative ‘outsider’ to railway engineering, compared for example with the Stephensons. Brunel's flamboyance and taste for scale made him very innovative in civil engineering and many other aspects of railway design.Footnote ³⁸ Even Brunel's ‘broad-gauge’ railway, which proved so controversial and was, eventually, on the losing side of history, can be judged successful in many respects. Some of the locomotives designed for that gauge by Daniel Gooch are considered to be fine feats of engineering. But Brunel's locomotive specifications in the mid-1830s, with which he sought to direct the designers and manufacturers into his preferred channels, are widely judged to have been disastrous in their consequences.Footnote ³⁹

The early locomotives on the Great Western Railway experienced numerous problems and breakdowns, partly it seems because of Brunel's design stipulations. In an effort to conform to his demands manufacturers made compromises and departed from their usual practices. Brunel, in effect, created a situation in which the engines were more experimental than they might otherwise have been. This may have been an instance of Brunel's inability to leave anything well alone, of his compulsion to seek improvements in anything in the invention line placed before him. However, it also likely reflected his determination to realize his distinctive railway system. The manufacturers of engines for the GWR Company were increasingly unwilling to take all the blame for the locomotive misfortunes. Thus Mather, Dixon & Co., seeking final settlement of their account after a long period of negotiations about who should be responsible for the repair and modification of the locomotives Premier and Ariel, which they had supplied, wrote to the Company as follows:

Even before this the directors of the GWR had begun to depend more heavily on Daniel Gooch, whom Brunel had employed. As Gooch confided to his diary, he was put in a difficult position because the directors began to ask him to report directly to them, ‘apart from Mr Brunel’, not through him.Footnote ⁴¹ That there was a great improvement in the work of the locomotive department thereafter is unanimously agreed upon.

Although Gooch and Brunel worked well together subsequently, it seems possible that when Brunel performed his extensive experiments on the use of an exhaust fan on engines, and then considered patenting the result, he was reacting to his implied ‘failure’ as a locomotive designer. In considering patenting this development Brunel insisted that it was not for any ‘pecuniary advantage or monopoly’. Was reputation or vindication perhaps his object? The fact that Brunel seems to have been almost driven to a patent by the failure of his usual modus operandi of invention does suggest a very close relationship between that way of working and his opposition to the patent system. Of course in the end the patent was not taken out and one is reduced to speculation about why Brunel might have considered so ‘unprincipled’ a move. What we do know for certain is that, on this one occasion at least, Brunel contemplated putting expediency above principled opposition to patents. Even to consider this he must have anticipated little by way of public embarrassment as a result of taking out a patent and this, in turn, implies that he did not see himself as a publicly declared patent abolitionist at that stage of his career, merely as someone who had yet to take one out.

Importunate inventors

Examination of Brunel's reaction to some of the patented inventions that he found useful in his various ventures will further clarify how his compulsive urge to improvement of all inventions that came his way amounted to an attempt to bypass the patent system. His sense of his own ability to find further improvements in patented inventions that were presented to him reinforced his idea that such improvements were always possible (and necessary if the invention was to yield practical pay-off) but that in less powerful hands than his own improvements would be prevented, rather than encouraged, by the patent system.

I will examine in some detail Brunel's dealings over a number of patents that were important to him. First, however, it is worth looking at the situation that Brunel found himself in as he became associated with ever grander projects and as his fame spread. When one works through the Brunel correspondence with an eye on patents it is striking just how many letters there are from Brunel to importunate inventors. Their number grew enormously through the 1840s, helped no doubt by the railway mania of most of that decade. By 1848 Brunel, with his impish humour, could inform the Reverend J. Hickman of Aston, near Birmingham,

Presumably the numerous responses that Brunel churned out would be a fraction only of the number of letters that he actually received from such importunate inventors. A survey of his replies (see Appendix) brings out a number of themes, as well as inducing more than a few wry smiles.Footnote ⁴³

The most important, insistent and paradoxical refrain was Brunel's requirement that anyone approaching him with an invention on which they sought his advice must have previously patented it. This was the question that Brunel asked if the situation was unclear: is your invention patented and specified, or otherwise made public? He insisted on a positive answer to this before he would even receive the communication. This seems paradoxical in that Brunel, the great opponent of patents, thus required those approaching him for advice to have taken out a patent and so effectively encouraged them to do so. Communications received where this was not the case were returned ‘unread’ (at least in principle). Brunel's reason for this, sometimes conveyed, sometimes not, was that he would not be a party to secrets. His great concern was that by receiving confidential communications he would open himself to numerous problems, including accusations of appropriation of the work of others. I have already noted Brunel's compulsion to improvement of anything placed before him. If a patent specification were not available then it would be hard to define, legally or otherwise, what was the importunate inventor's and what was Brunel's. With a patent available Brunel felt that he could communicate on the matter and, on those occasions when his creative energy was provoked, his own contributions would be clear.

A second, closely related, theme in these letters is that Brunel frequently declines to give opinions ‘in the abstract’. Responding to Drake in 1846 he pointed out that pronouncing on abstract questions would be ‘impossible … without misleading’. Given that there were ‘hundreds of influencing circumstances not referred to in your question & “case”’, it would be impossible to give a correct answer on whether the invention was a good one or not.Footnote ⁴⁴ To John Shuttleworth, who had written describing his patented hydraulic propelling apparatus, Brunel explained that his engagements were too pressing to allow him to investigate inventions ‘unless I have occasion to examine into [their] applicability in some particular case’.Footnote ⁴⁵ The implication was that unless inventions were investigated in specific applications their real utility could not be determined. In that sense, inventions were, by definition, abstract.

A third category was responses in which Brunel, apparently sometimes in contravention of his ‘rule’, did give instant advice. Usually this took the form of information that the supposed invention had already been invented many times (this was a kind of grassroots affirmation of the principle of multiple, simultaneous invention), that it had already been patented, or had already been investigated and tried and found to be useless. Brunel's responses were tailored to the social status of the inquirer. Those with social standing received less short shrift than did plain ‘Misters’ or workmen. Some inventors took the precaution of approaching Brunel through a Member of Parliament or a member of the local gentry, a legal representative or some other person of note. In such cases, or where the inventor himself was, for example, a clergyman, Brunel gave less curt responses. But the message was still the same. In more expansive moods Brunel gave advice to the effect that an inventor's lot was a sad one. He advised workmen in particular that they should save their time and money by not chasing patents in such a competitive and overcrowded field. Brunel could be brutal and, I suspect, enjoyed it. A peculiarly importunate John Lee made the mistake of approaching Brunel a second time about his invention. Brunel shot back:

In Brunel's testimony before the Select Committee the marks of these experiences are clear. In rather more benign fashion Brunel places great emphasis upon the plight of the poor workman inventor. That class of inventor, Brunel says, will chase a patent and keep their idea secret while they elaborate it. In doing that they lose a lot of time and money. Even if they get a patent they usually find that there is no demand or that someone else has done it better before them. He argued that without the incubus of deluded hopes of patents, workmen would churn out more good things. Far from arguing on principle himself, Brunel contended that thinking about patents had been distracted too long by reference to a principle of fairness:

The poor but inventive workman of the sort that Brunel spent so much time dismissing or advising against the evils of patents was thus a major figure in his case against the patent system.

Dealing with expectant patentees

Brunel's dealings with those expectant patentees who presented him with patented, specified inventions that were of direct interest to him reveal that when Brunel did set to work on them the effect, or at least the claimed effect, was a transformation of the invention. This was not done in order to claim, as in a patent, the improvements that Brunel made but rather to neutralize the claim (and the patent) with which he had been presented. Brunel was effectively saying, ‘look how I have transformed your invention. It's my work that has really made it useful and useable. I know more about this than you do. Now, let's negotiate the terms on which my company will take up “your” invention.’ This sort of attack was the way in which Brunel pursued invention, as he described it in his 1851 testimony, ‘without patents’ and defended his own inventive activity ‘against patents’.

Here are some examples of this. One concerns the treatment of wooden railway sleepers in order to preserve the timber before they were laid. Brunel had used a process known as ‘kyanizing’, which was based on patents taken out by John Howard Kyan in 1832 and 1836.Footnote ⁴⁸ Early in 1850, via one Charles Jackson, Brunel entered into discussions with the patentee of an alternative preservation process, Sir William Burnett.Footnote ⁴⁹ The process in question became known as ‘burnettizing’. In negotiating the terms on which he, or more strictly the companies he represented, might use this process, Brunel began with the observation that he was ‘just beginning to have faith in your process’.Footnote ⁵⁰ Note that the existence of a patent meant nothing to Brunel so far as the quality of the process was concerned. His judgement was what mattered. Brunel then expatiated on his extensive use of such solutions and his determination that he, rather than the patentees, knew how best to apply the process. In particular, Brunel said, ‘I should be afraid to depend on it [the process] unless I could afford to use the solution almost wastefully to inject a much larger quantity per load into the timber than that recommended by you.’ Brunel considered it necessary to throw away solution that had absorbed impurities from the timber: ‘a precaution which has never been sufficiently attended to but of which I soon discovered the necessity’. From these claims to knowledge of the practicalities of such treatments and from his own claims to have improved the process beyond the understanding and recommendations of the patentees, Brunel built his case for the financial and other terms that he wanted. The need to use large quantities meant that the price must be low. The need for guaranteed supply at a low price meant that Brunel must have the option of making the solution himself. He would not compete with them as a manufacturer provided they supplied the solution at 3d. per pint (‘at which price I believe I shall not trouble myself to make it’). Brunel also undertook not to manufacture the solution for supply to others. On these conditions Brunel would offer a royalty on the patent of a farthing per ‘load’ of timber treated, and sought licenses for a number of railway companies with which he was associated.

Of course, negotiation between a patent holder and a potential licensee is unremarkable. But what is notable here is that Brunel is not just a prospective customer driving a hard bargain. Rather, he presents himself as practically a co-inventor and, moreover, a co-inventor who has a better grasp of the technical, practical and financial realities than the patent holder. As we will see, Brunel abstracted from this sort of personal experience the principled view that invention and improvement was a continual process. The taking of patents froze or fossilized that process and so ran counter to the interests of improvement generally. In his dealings with patent holders Brunel was determined not to allow such fossilization. He always had an improvement to suggest.

Consider another example, that of ‘Wright's Patent Steam Generator’. When first approached about this, Brunel gave one of his standard suspicious responses to Hunt and Hunt, who were acting as agents for the patentee:

Brunel was here warning that what people intended to do with his advice was very important to him and would determine whether the advice would be forthcoming in the first place. In case the Hunts were unclear on this, Brunel spelt it out:

Despite Brunel having thus made it clear that he would call a spade an earth-moving device, and regardless of his declared ‘almost certainty’ that he would find defects and problems, Messrs Hunt still wanted his opinion. He launched upon an extensive series of experiments and by mid-July he reported progress with them (‘there would appear to be a very marked economy’), but he wanted to do more experiments to test the extent to which the economy depended upon the dimensions of the boiler.Footnote ⁵³ By 10 August Brunel had finished his experiments and was ready to give his opinion. He found an improvement in steam generation performance of between ten and fifteen per cent over the best Cornish boilers. It becomes clear that even as he obtained these positive results Brunel was applying his mordant scepticism and making tests to see whether other factors might be ‘a principal cause of that increased effect of the fuel and not the principle patented’.Footnote ⁵⁴ Fortunately for the patentee this turned out not to be the case, and Brunel conceded, ‘I must therefore ascribe the satisfactory results obtained to the operation of the system which is the subject of the patent.’Footnote ⁵⁵

It might be thought that this represented, after all, a ringing endorsement of Wright's patented invention. Brunel's concluding words, however, reintroduced the air of scepticism. While acknowledging that the results showed that the principle was a good one and likely to be valuable, there was, so he said, always the possibility that ‘some practical difficulty exists or should arise in the working of it’ which he might have missed. So far as applying the scheme to marine or locomotive boilers was concerned (and the patentee and his agents must surely have held their breath at this point, given the large market those applications represented) ‘several mechanical difficulties will arise, these no doubt may be overcome but every thing will depend upon the judgement with [which] such difficulties are met’.Footnote ⁵⁶

Whilst Brunel's relentless and parting scepticism might conceivably have been a routine device to protect him as a professional adviser, it seems to be more than that. It instances Brunel's unwillingness to treat any patented invention as a finished product. The principle of a patent might be sound; its application in practice was quite another matter and would involve further experiments and, almost certainly, further improvements. The fate of the patent and ultimately its value would depend on Brunel's judgement in its adaptation to practical use. At the level of practice this stance put Brunel in a strong position as a potential co-inventor or improver to negotiate a licence for the use of the patent. When read into principle such an exchange would reinforce the idea that, in terms of practical implementation, patented inventions were of limited value, and also likely to present obstacles to improvements of the kind that Brunel could always develop or envisage.

Those who sought to impose patent rights rather than complying with his efforts to weaken them roused Brunel's ire. John Barton apparently made an approach through the elder Brunel in the early 1840s suggesting that Brunel purchase his patent. Barton must have offered its potential use on a railway line competing with Brunel's railway associations as a reason for Brunel to buy it up. The response was devastating:

This is a stark expression of Brunel's opposition to any attempted restrictive use of patents. That opposition is also illustrated by his response to the activities of the Permanent Way Company.

In late 1851 application was made to Parliament for a bill to incorporate the Permanent Way Company (PWC) ‘for working certain patents relating to the permanent way of railways’.Footnote ⁵⁸ By January 1852 the PWC was advertising to railway companies its willingness to make arrangements for the construction of permanent way under its patents, using ‘eminent contractors’. It was subsequently announced that Charles May, ‘lately of the firm of Ransomes and May, Ipswich’, had been appointed to manage their transactions.Footnote ⁵⁹ May (1800–60) is an interesting character. He was a Quaker inventor and became a partner in Ransomes and May, iron-founders of Ipswich. His partner James Ransome had taken out a patent with May (Patent No. 8,847) on 15 February 1841 for the chill casting of railway ‘chairs’ (fastenings in which the rails are held) and for a process for making wedges and pins to fix the chairs and rails. May took out further related patents in 1847 (No. 11,641) and 1851 (No. 13,801). These appliances were the foundation of a very large business employing hundreds of men and boys. At the time of the formation of the PWC, May was actually retiring from Ransomes and May. The partnership was dissolved in June 1852. May had done engineering work on a number of astronomical observatories and most famously helped George Airy, the Astronomer Royal, in constructing the altazimuth and meridional circle instruments at the Royal Observatory, Greenwich. He had also been the local secretary for the Ipswich Meeting of the British Association in 1851 and was to be elected FRS on 1 June 1854, with Airy, Brunel and other distinguished scientists and engineers among the signatories of his certificate.Footnote ⁶⁰

The PWC, with May to the fore, was at the centre of a brouhaha among engineers in early 1852, the precise nature of which has yet to be fully unravelled. Meetings of the Institution of Civil Engineers seem to have been a major forum for this. On 10 February W. B. Adams (one of the inventors in the PWC ‘stable’) presented a paper to the institution about the construction and durability of permanent way. Among the contributors to the subsequent discussion were five other members of the PWC stable.Footnote ⁶¹ If the event was in any way staged, the participants had reckoned without Brunel. He began by contradicting Adams on a number of technical points, emphasizing the large number of trials he (Brunel) had conducted on the questions at issue. Then Brunel warmed up a little:

Others entered the discussion, hoping perhaps that Brunel would cool down. Instead he smouldered for a while, then ignited. Brunel noted that many if not all of the numerous modifications of rails discussed by the author were the subjects of patents. They had not been tried and probably never would be:

For all Brunel's attempts to disclaim any invidious intent and his professed ‘desire to remark courteously on the papers kindly prepared for the meetings’,Footnote ⁶⁴ the PWC affiliates must have been very angry.

Two months later a couple of papers on railway accidents and on the economy of railways sparked discussions that spread over four evenings, much of which concerned the desirability or otherwise of railway companies engaging in their own manufacturing. Once again Charles May and Brunel were among the contributors to the discussions, May being strongly against railway companies expanding their activities into manufacturing, as might be expected from someone associated with a major new supplier like the PWC. Brunel for his part adopted a more equivocal position. He thought that in some circumstances railway companies might manufacture. Though he did not spell this out it would probably have been clear that the circumstances he had in mind were those in which specialist manufacturers like the PWC might try to maintain a monopoly position on the basis of their combined patents, and to use this to raise prices.Footnote ⁶⁵

Informal discussions must have occurred about the PWC initiative at these meetings or elsewhere, because shortly afterwards Brunel wrote to May saying that he and all the engineers he had been able to speak with were very much against the company's attempt to effect a ‘combination’. He warned that he would ‘watch its proceedings with anxiety and even with suspicion, because it is capable of much evil’.Footnote ⁶⁶ The dangers of the accumulation of fanciful forms in one patent (like that of Adams) were presumably compounded by the accumulation of numbers of such patents in one company. But the PWC could also do good:

Thus although in Brunel's ideal world patents would not exist, his concern was that, given that they did exist, they should not be ‘abused’. Apart from the cost implications of patents Brunel saw them as potentially an obstacle to attempts at further improvement. If patent holders sought to stifle competition by filing interference suits indiscriminately then evil would result. If they refrained from such action then they were behaving well in Brunel's estimation. The PWC was dangerous because it was an organization dedicated to owning and managing patents. A rational approach to that business on behalf of the shareholders in the company might easily mean raising obstacles to further improvement by others. The temptation to patent ‘fanciful forms’, to deliberately create what Brunel regarded as patents of principle by means of abstract specifications, and to use its stable of patents in combination, like a net, to entrap and control others, would always be there. Once again, in the real world of patent practice Brunel was happy to stipulate ways in which he could live with the realities of patent protection and cope with the dangers that, from his perspective, its misuse threatened. Nevertheless, those engaged in misuse as Brunel saw it were left in no doubt as to where he stood. Nor were the members of the House of Lords Select Committee when Brunel informed them that abolition of patents would not only advantage the poor class of inventors but would also get rid of ‘the class of men at present called schemers, who I believe are a pest to society’.Footnote ⁶⁸

As a final example of Brunel's dealings with patents let us examine the case of the screw propeller. One of the most celebrated of Brunel's shipbuilding innovations was, of course, the use of screw propulsion in the SS Great Britain. A key patentee of the screw propeller was Francis Petit Smith, whose financial backers formed the Screw Propeller Company to build the steamer Archimedes to trial his design.Footnote ⁶⁹ Early in 1840 T. R. Guppy attended some of these trials on behalf of the directors of the Great Western Steamship Company, sailing on the Archimedes to Liverpool from Bristol, and reported back to the building committee for the SS Great Britain. The directors, on Brunel's advice, delayed work on the ship until the screw propeller could be fully investigated. Over the course of a few months, Brunel, Guppy and Captain Christopher Claxton experimented with different screw designs in the Archimedes. Brunel drew up an elaborate report, which has been described by experts as ‘a masterpiece of clarity and insight … a foundation stone of the rational analysis and application of screw propulsion in ships’.Footnote ⁷⁰ The report was given to the directors on 1 October 1840 and the screw propeller was adopted for the great ship. It would be some time, however, before the design for the Great Britain would be finalized, and in the meantime Brunel became involved in advising the Admiralty on the possible use of screw propellers in Navy ships.

At the initial meeting with the Admiralty on 27 April 1841 Brunel demanded, and was assured, that the experiments with the screw would be entirely in his hands. No government officers were to interfere. Brunel would report directly to Sir Edward Parry, controller of steam machinery to the Navy, and to the Lords of the Admiralty themselves. A famous comedy of errors and apparent subversion by hostile Admiralty officials ensued during attempts to bring suitable engines and vessel together for trials. These finally began in 1843 in HMS Rattler and continued periodically for more than a year. The upshot was that in 1845 the Lords of the Admiralty ordered a number of vessels to be fitted with screw propellers.Footnote ⁷¹

The most recent scholarship on this affair suggests that Brunel was boxing very clever in taking on the Admiralty assignment in that he used the trials as a way of conducting experiments, at public expense, useful to the SS Great Britain.Footnote ⁷² He also boxed clever in the matter of most direct interest to us here, the use of others' patents. Both the Admiralty and Brunel exploited Francis Petit Smith and the Screw Propeller Company, which owned Smith's patent. As Buchanan puts it, ‘in effect the Screw Propeller Company supplied essential development research free to both Brunel and the Admiralty before being forced into liquidation’. Before that happened, though, Brunel had positioned himself as effectively a co-inventor with Smith. He saw Smith's patent as one of principle in the sense that ‘he realized that much more work was needed to determine the best size, shape and fitting for the screw’. Their conjoint work took the principle of the screw into efficient action.Footnote ⁷³ At one stage, in April 1844, as trials were still being conducted, the Admiralty seemed reluctant to make a screw of which Brunel had sent a drawing. It appears that their concern involved their belief that Smith intended to patent the modified screw. Writing to Smith, Brunel was once again puzzled and exasperated by Admiralty behaviour: ‘I do not understand the distinction drawn as all the screws which are being tried are the subjects of patents but of course I can say no more.’Footnote ⁷⁴ A couple of days later the difficulty, however unfounded, was solved. Brunel wrote to Sir John Barrow informing him that Smith ‘does not propose to take out a patent for the modification of the screw … as I had understood to be his intention’.Footnote ⁷⁵

The veritable orgy of patenting of screw designs that occurred in the late 1830s and early 1840s would have severely tried Brunel's patience, especially since so many of the exotic schemes were, from his perspective, patented fancy rather than practical possibility.Footnote ⁷⁶ The ownership of the invention was thoroughly contested in the courts. In the 1840s both Smith and the marine engineer John Penn, Brunel's other major coadjutor in designing and supplying engines for screw propulsion, were heavily involved in litigation.Footnote ⁷⁷ Though noting that he always kept out of court as much as possible, Brunel expressed his willingness to do anything he could ‘to secure to those who have really brought the screw to work all the advantage and credit of the invention, and if I can be of service you may make use of me’.Footnote ⁷⁸ Once again Brunel was making a distinction between those whose claims he considered to be based merely on patents of principle and those who had ‘really brought the screw to work’. Smith and Penn, unsurprisingly given their collaboration with Brunel, were in the great engineer's estimation those who had made the screw workable.Footnote ⁷⁹ Once again, the black and white of principled patent abolitionism gave way to shades of grey according to which some patents, in some circumstances, could, and should, be defended.

In his testimony before the Select Committee Brunel at one point drew a distinction that illustrated nicely his self-image as an improver of inventions and indicates the type of patent (and patentee) that he was prepared to support:

By ‘man of observation’ here Brunel does not mean someone in a detached, ‘objective’ position. Quite the contrary: a man of observation is genuinely involved in practical hands-on work which gives him the opportunity for observation of its details. The contrast is with the professional inventor, whose business is invention (those who ‘appear as inventors’ by the accumulation and exploitation of patents) rather than the activity from which, in Brunel's view, genuine invention springs. Although as a ‘man of observation’ Brunel would not take out a patent, he would support others of the same type who made a different judgement on that matter, but not those who, with their portfolios of abstractly specified patents, were for him mere pretenders to invention.

Conclusion

Brunel's supposedly principled public stance on the patent question becomes more complex when we examine in detail his professional and private dealings with patents. Although he may well have formed early views about them, informed in part by his father's tribulations, those views were further shaped by the experiences of succeeding decades. At one stage, contrary to later denials, Brunel seriously pursued a patent, though in circumstances which remain somewhat mysterious and are worth further investigation. The large projects that he undertook, the experience of dealing with the importunate inventors who besieged him, and his inventive persona (which meant that he could not look at a patent without seeing many ways to improve it or bring it into practice) combined to make Brunel read every patent as a patent of principle. Brunel could thus cast patents into the mould of brakes upon progress and constraints upon improvement whilst at the same time avoiding or minimizing those constraints on him. Those constraints were loosened with regard to patents that he did want to use by his exuberant development of them to the point where their ‘original’ status as mere patents of abstract principle became hard to deny. Brunel made his point. He got what he wanted. In this way, principle, practice and persona combined.

Turning the microscope on what we might call the ‘ecology’ of Brunel's patent abolitionism, or on patent abolitionism as a way of doing business, has significance in other ways. It is an example of historical work trying to get inside the patent phenomenon. Economic historians have long and usefully explored the links between the macro-phenomena of economic growth and various measures of patenting activity, but otherwise most historical study of patents has been of principles and debate about the system.Footnote ⁸¹ On the other hand, an emergent cultural history of patenting has opened up exciting new avenues, not least that relating patenting to heroic, individualistic histories of engineering, technology and creative endeavour more generally.Footnote ⁸² Our understanding of the changing cultural bases and relations of intellectual property is set to benefit from this. However, study of representations of patenting, whether statistical or cultural, fail to provide insight into the varieties of patenting practice and their relationship with these wider economic and cultural currents. My study of the intermeshing of principle, practice and persona in Brunel's case only begins to reveal some of the complexities involved. It is also limited in the period that it covers, and it is not claimed that the ecology of patent abolitionism described here was in any sense typical, or general, in later nineteenth-century Britain.Footnote ⁸³ However, this paper does, I hope, orient us in a useful direction for further historical study of this sort, which links the cultural, psychological, legal, economic and technical engineering dimensions of patenting activity.