To Promote the Progress of Useful Arts: American Patent Law and Administration, 1787-1836 (Part I)
![handle is hein.journals/jpatos79 and id is 63 raw text is: To Promote the Progress of Useful
Arts: American Patent Law and
Administration, 1787-1836 (Part 1)
Edward C. Walterscheid
I: INTRODUCTION AND OVERVIEW
T he Patent Act of 18361 is generally acknowledged to be the foun-
dation for the modem patent examination system in the United
States. It created the Patent Office, a corps of examiners, modem in-
terference practice, administrative appeal practice, and the modem pat-
ent numbering system. But what is frequently forgotten or ignored is
that the patent system it created came into existence predicated on-
and in no small measure in reaction to-decades of prior administrative
practice under a detailed statutory scheme which had received rather
extensive judicial interpretation. Almost ten thousand patents had been
issued by 1836. There thus was a significant background, both legal
and administrative, against which to view the Act of 1836.
A. Purpose of This Work
Almost with the creation of the federal republic, the United States
sought to have a patent system. Just as England had, it would quickly
discover that establishing a patent custom was one thing, but transi-
tioning it into a patent system was quite another. Much has been written
about the debt which the United States patent system owes to its English
antecedents, yet it is something of a misnomer to call the English patent
custom prior to 1800 a patent system.2 A major reason why that early
I Act of July 4, 1836, 5 Stat. 117.
2 In a seminal work, Christine MacLeod has sought to explain how a patent system developed
in England. While her major emphasis may be said to be on the administrative aspects of that
development, she makes abundantly clear that the creation of an effective patent system as such
was dependent on the development in consonance of applicable legal principles under a rule of
law. C. MacLeod, Inventing the Industrial Revolution, The English Patent System, 1660-1800
[hereafter English Patent System] (Cambridge 1988). She begins her work with an admission that
[b]etween 1660 and 1800 the 'patent system' was something of a misnomer. Id. at 1. Cf. D.
Seabome Davies, Further Light on the Case of Monopolies, 48 L.Q.R. 394 (1932) who states the
Patent System was introduced into England as a system in the second year of Elizabeth's reign.
Id. at 396. See also W. H. Price, The English Patents of Monopoly (Boston 1906) who contends](ViewImageLocal?handle=hein.journals/jpatos79&div=9&collection=&method=preview&ext=.png&size=3)
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To Promote the Progress of Useful Arts: American Patent Law and Administration, 1787-1836 (Part I)
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