While a few nations had intellectual property (IP) laws before 1800, many more created them in the nineteenth century, and even more than that waited until well into the twentieth century. When scholars examine different national and international IP regimes, they find not only controversy and apparently intractable debate about the laws’ merits but also seemingly irreducible variety. Two recent books—the edited volume Patent Cultures: Diversity and Harmonization in Historical Perspective put together by Graeme Gooday and Steven Wilf and Inventing Ideas: Patents, Prizes, and the Knowledge Economy by B. Zorina Khan—examine the global diversity of IP systems and their impacts on national economies.
Patent Cultures—which, its editors note, is “the first attempt in over half a century to survey the history of how patent frameworks have developed across the globe”—draws together sixteen essays covering the Americas, southern Europe, central and eastern Europe, and Asia (p. 6). The volume starts from the following question: Why, given the great difference between national IP systems, do so many people believe that “their unification would be both natural and indeed anticipated?” (p. 3). The drive for so-called harmonization between national IP systems has increased under globalization since the 1990s, including with the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) in 1995. But the contributors to Patent Cultures show that desire for unifying patents systems went back before the Paris Union for the Protection of Industrial Property of 1883. Put another way, the hankering for harmonization emerged hand in hand with modern IP systems themselves.
The editors of and contributors to Patent Cultures put forward a picture of fluidity, contingency, and the diverse origins of IP regimes. Why and how patent laws changed or remained static involves the interplay of economic and political concerns. The volume makes clear that harmony and disharmony serve different interests. For example, whole businesses, including law offices and patent agencies, emerged to translate and mediate between conflicting IP regimes. They profit from variety. Meanwhile, as Gooday and Wilf write, both the Paris Union of 1883 and its copyright counterpart, the Berne Convention for the Protection of Literary and Artistic Works of 1886, “were established at the urging of inventors and writers” (p. 21). Inventors and corporations show up as recurrent supporters for IP unification, in hopes that their creations will be equally protected around the globe.
While the nations of the world have not united around any single, ideal model of IP, several chapters in Patent Cultures show that a few individual national models have had outsized influences on developments in other nations, with the three most prominent being the American, French, and German models. Colonialism was a common (but far from the only) way that models spread from rich, Western industrial nations to poorer ones in the Global South. In a fascinating study of change, Edward Beatty examines how Mexico inherited a regime of “patents-as-privileges” from its former colonial ruler, Spain, but over time came to harmonize somewhat with the patent system of the United States, in part to attract foreign investment.
In the first of two chapters in the volume on India, Rajesh Sagar examines how the introduction of British patent law into India in 1856 aimed to disadvantage indigenous inventors. Only after Independence in 1947 did the Indian state create an IP system meant to be fair to Indians themselves—a development that was accompanied by initiatives in higher education and other changes meant to foster human capital and innovation. In the second India chapter, Tania Sebastian shows that Indian leaders took this shift even further in the 1990s and early 2000s, with India becoming a leading nation to challenge patents, especially on pharmaceuticals, in an effort to shake up the hegemony of Western corporations.
Even in nations that were never colonized, like Japan, Western patent laws loomed large. As Kjell Ericson describes in a fascinating chapter, Japan adopted a patent system in the 1880s that was an amalgam of European and U.S. patent rules. But the Meiji government developed its IP systems specifically to defending indigenous industries; Ericson focuses on the cultured pearl industry. Far from aiming at “harmonization,” the Japanese system was built to protect—a habit of political economy that had long-lasting ramifications for Japan's industry and culture.
How leaders perceived national and regional needs is a major thread throughout Patent Cultures. In an impressive feat, historian Karl Hall writes all three essays that make up the volume's section on central and eastern Europe. Hall notes that most international histories of patents focus on the Anglo-American and French systems developed in the eighteenth century. But the German system, though it did not emerge until 1877, had a profound influence on its neighbors, both because of the nation's industrial might during that period and because debates around IP within the country led to it having, as one observer at the time put it, the “largest literature dealing with the theoretical aspects of patent law” on the planet. The German system focused in large part on furthering national interests over those of individual inventors. In another chapter, Hall shows how parts of the Austro-Hungarian region continually attempted to move from the Hapsburg Empire's IP roots in French law towards the more modern German one, in no small part to work with the powerful German economy. In this way, regional interests in limited “harmonization” trumped truly international visons.
Taken together, the sixteen essays in Patent Cultures make a strong argument for the relative influence of a limited set of national IP models in the development of regimes around the globe, while also attending to how local, national, and regional interests shaped the final form of different systems. But can we say which systems perform better than others?
B. Zorina Khan writes Inventing Ideas, an examination of patent systems in Britain, France, and the United States, with something like this question in mind. Combining an impressive array of both quantitative and qualitative evidence, Khan seeks to explain the enormous economic and productivity growth of the past two centuries, particularly the role that ideas played in this process. Although the Industrial Revolution began in Britain, over the nineteenth century it was supplanted by the United States. Thus, Kahn “shifts the focus of the debate about the technological foundations of growth to consider ‘Why America?’ How did the United States overtake Europe to become the world's technological and industrial leader, and why was it able to sustain its dominance into the 21st century?” (p. 7).
Readers of Khan's earlier book, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790–1920 (2005), will not be surprised by her answer. Khan argues that, while their national patent laws differed in some ways, Europeans developed “administered” IP systems that limited participation to established elites, whereas the United States adopted “flexible market-oriented institutions” that opened up and incentivized participation. As she writes, “Ultimately, American institutions and policies rejected the European perspective that attributed progress to the efforts of elites and esoteric knowledge, owing to a fundamental belief in the cumulative effects of the creative ideas of diverse ordinary individuals” (p. 10). Indeed, Americans democratized invention (to paraphrase Khan's earlier title) through “more democratic institutions that celebrated diversity and disruption, and offered incentives to everyone in the population” (p. 12).
The “democracy” of the U.S. system is best viewed in comparison with European systems and was far from ideal. In her contribution to Patent Cultures, Courtney Fullilove examines how U.S. patent law required a physical model to be submitted with patent applications, a rule that led to the emergence of specialized model-making firms in the nation's capital. The models, Fullilove argues, acted as a barrier to entry for less well-to-do inventors; thus, “while the romance of the lone tinkerer buoyed many fantasies of American ingenuity, for the most part, a concentrated group of professional inventors made money off the patent system, mainly through persistence and strategy” (p. 101). Moreover, as Gooday and Wilf mention in passing, “no one in the political condition of slavery had any real prospect of securing a patent” (p. 16).
Still, when comparing the United States with the United Kingdom and France, Khan makes a compelling case that the U.S. system was far more open and flexible. In a chapter on France in Inventing Ideas, Khan flays revisionist historians who have asserted that the French administrative state fostered economic “dynamism.” As she writes, “A society based on special privileges for the few provided disproportionate benefits for elites and those with personal connections, disadvantaged creativity that was radically new or ideas that threatened existing interests, and all too often promoted rent-seeking rather than productivity and innovation” (p. 145).
Perhaps the most refreshing contribution of Inventing Ideas is in how it questions notions that are very popular today, including the ideas that patent trolls undermine IP systems and that systems in which committees of influential figures award prizes to inventions lead to real innovation. Khan rightly states that arguments for these ideas are often wildly ahistorical and under-evidenced. She demonstrates that worries about what we now call “patent trolls” and litigation go back to the nineteenth century but that there is little evidence to support the idea that they have often held back deep innovation. In an even more damning account, Khan shows that invention prizes were an elite-controlled administered system par excellence, which tended to reward other, in-group elites. As Khan puts it, the empirical analysis of prizes “consistently finds that prize awards were largely idiosyncratic and unrelated to factors like inventiveness or the market value of invention” (p. 28).
Few business historians will be completely won over by Khan's argument for the superiority of the American IP system, I think, particularly when she leans on the distinction between administered and market-oriented institutions. Approaches that have been popular in business history recently—perhaps most of all, Naomi Lamoreaux, Daniel Raff, and Peter Temin's article “Beyond Markets and Hierarchies: Toward a New Synthesis of American Business History” (American Historical Review [2003])—have worked explicitly to break down such dichotomies. Furthermore, while Inventing Ideas is meant to be more comparative than The Democratization of Invention was, it still leaves big questions unanswered about whether IP played as large a role in fostering different economic trajectories as Khan seems to think it did.
Yet, my experience of reading the book was one of being shocked out of complacency. Not only did I become unsure about why I have believed what I do about, say, the problem of patent trolls or the benefits of prize systems, I also realized I was unsure as to how these ideas ended up in my mind in the first place. One of the greatest gifts a scholar can give us is to show us our own ignorance.
Taken together, Patent Cultures and Inventing Ideas put on display a tension not only in IP governance but in the very heart of modernity: on the one hand, the feeling that what is good should be universal, and that universality leads to a number of benefits, including ease of movement of peoples, ideas, and things; and on the other hand, the sense that values are irreducibly plural and that diversity of goods should be respected, even defended. As Khan makes clear in her own contribution to Patent Cultures, even she does not argue for a one-size-fits-all approach but rather for legislation that “serves the needs and interests of social and economic development in each nation” (p. 88). The ultimate and hard question is what kind of IP regime will lead to the best possible outcomes in a given context.
A few times, Gooday and Wilf offer the tantalizing suggestion that we may have entered an era of “post-harmonization,” when many individuals and groups around the planet have given up on true harmonization or even work to resist it. As Gooday and Wilf make clear in their introduction when touching on the cases of China and Africa, and other authors in the volume highlight in their own ways, a tremendous number of activists and organizations in poor and rich nations alike have come together to fight global IP regimes that favor Western interests and to defend the right of nations to affordable medicine and food and forms of indigenous knowledges. The proposition of a post-harmonization world may seem even more likely in the few years since Goodway and Wilf put the finishing touches on the edited volume, as we have witnessed the emergence of such trends as Brexit, trade wars, left- and right-wing populism, and nationalistic conceptions of “industrial policy.” However these trends play out, the authors contained in the two volumes covered in this review have given us excellent approaches and tools to examine the changes that come.
