Nexus: Chapman's Journal of Law and Public Policy

As secretary of state, Jefferson ran our first American patent office. For him, its purpose was to promulgate inventions, not to protect them. He hated monopoly and was determined that the patent process shouldn't serve it. The peculiar character of an idea, said Jefferson, is that

"... no one possesses the less because everyone possesses the whole of it. He who receives an idea from me receives [it] without lessening [me], as he who lights his [candle] at mine receives light without darkening me."

The candle is a great analogy, and I have huge respect for President Jefferson. As a proud West Point graduate, how could I hate the man who signed that institution into creation? That’s right, the very man who consistently enumerated the evils of a standing army, signed the military academy into law. The lesson is that our greatest heroes often fall from the pedestal we put them on. They have hidden motives and act in contradictory ways.

So it is with the above quote. As great an inventor and thinker that Jefferson was, he saw only half the picture in intellectual property as evidenced by this quote. Maybe he should have borrowed Ben Franklin’s bifocals? He does clearly point out the problem with treating ideas and expressions as property. On this point I agree with him 100%. Unlike my car, which only I can drive at any one time, two people can read copies of the same book at the same time, or turn on their respective light bulbs at the same time. More simply put, we can think, or enjoy the fruits of, a great idea at the same time.

However, Jefferson’s role as patent commissioner worries me, and I’m glad that his ideas did not become precedent. His analogy rests on a few assumptions. The first is that someone invented fire. Without the invention of fire, it would be hard to pass it from one candle to another. The second assumption is that the possessor of the first candle made that candle public knowledge. Both of these assumptions are addressed by law, and driven by a policy of incentives. These are where Jefferson missed the boat, or fire as the case may be.

The first assumption is that someone was motivated to invent, or discover fire. However, if we assume that people are rational actors (which there is some debate about, but it is a generally accepted assumption), then why would they put massive amounts of research and development into a new discovery for no objective return on their investment? They might feel good about improving everyone’s quality of life, but they can’t recoup their R&D costs. In such a world, Jefferson’s world, no one would be incentivized to invent or discover.

The second assumption also undercuts Jefferson’s argument. Let me pose a simple hypothetical: a manufacturer, let’s say a silversmith, discovers the candle while trying to create a waxy packing material for shipping his wares. With his new light source, he can now work into the night. He gets several additional hours to work, while his peers must stop. As a result, he makes more silver, and due to his salesmanship, is able to sell it all, making more money than his peers. What incentive does the silversmith have to share the candle with his peers? None: he has a strong incentive to keep it to himself. If he decided to apply for a patent – which means, in a rough translation, “to lay bare” – he would have to completely disclose his invention in exchange for the patent’s limited monopoly. What if he thinks that it will take someone else, working independently, 30 years to invent the candle? Patent protection would only cover him for 20 years from the date of filing. This is where state trade secret law comes in. Anyone who unlawfully obtains the secret is liable for damages to the holder of the trade secret or the ill-gotten gains from the unlawfully obtained secret.

Maybe then-Secretary Jefferson should have consulted an economist. Thomas Paine or Adam Smith could have certainly helped Jefferson in his role as patent commissioner. I certainly give Jefferson credit for creating a foundation of thought about intellectual property, but, in this instance, he built no Monticello.

The real question is what we should do in the modern day, when many industries seek patent protection, but are incentivized in different ways? Also, since there are fewer and fewer great leaps forward in technology, how do we deal with determinations as to obviousness when there are only incremental steps in crowed art areas? These questions are beyond the length of this blog post, but this post does contain the tools to start thinking about them. If you publish your great solution, would you like a copyright, or would you light everyone else’s candle, like Jefferson?