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Property Rights and Patent Litigation in Early Nineteenth-Century America

Published online by Cambridge University Press:  03 March 2009

B. Zorina Khan
Visiting Assistant Professor of Economics, University of California, Los Angeles, CA 90024.


Economic development depends on the establishment of appropriate institutions, such as a patent system that defends property rights in inventions. Skeptics argue that patents in early America were unenforceable because judges arbitrarily ruled against patentees. I examine 795 patent cases to assess the role of the courts and find that judges protected patent rights because they believed that inventors were motivated by expected returns. Although changes occurred in the 1850s, the courts consistently upheld the view that the patent system fostered economic growth. If inventive activity indeed responded to material incentives, this finding implies that the legal system stimulated technical change by reinforcing the effectiveness of the patent system.

The laws of the United States are extremely favorable to the division of property.

—Alexis de Tocqueville, Democracy in America

Copyright © The Economic History Association 1995

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American Jurist, 44 (10 1839), pp. 108–42.Google Scholar
Bishop, Leander J., A History of American Manufactures, from 1608–1860, 3 vols. (Philadelphia, 1868).Google Scholar
Bugbee, Bruce W., The Genesis of American Patent and Copyright Law (Washington, DC, 1967).Google Scholar
Burchfiel, Kenneth J., “Revising the ‘Original’ Patent Clause: Pseudohistory in Constitutional Construction,” Harvard Journal of Law and Technology, 2 (Spring 1989), pp. 155218.Google Scholar
Demsetz, Harold, “Toward a Theory of Property Rights,” in The Organization of Economic Activity (Oxford and New York, 1988), vol. 1, pp. 104–16.Google Scholar
Dutton, Harold, The Patent System and Inventive Activity during the Industrial Revolution (Manchester, 1984).Google Scholar
Engerman, Stanley, and Sokoloff, Kenneth L., “Factor Endowments, Institutions, and Differential Paths of Growth among New World Economies: a View from Economic Historians of the United States” (Unpublished manuscript, 1994).Google Scholar
Fouts, Levi N., “Jefferson the Inventor and his Relation to the Patent System,” Journal of the Patent Office Society, 4 (19211922), pp. 316–31.Google Scholar
Henderson, Dwight F., Courts for a New Nation (Washington, DC, 1971).Google Scholar
Horwitz, Morton, The Transformation of American Law, 1780–1860 (Cambridge, MA, 1977).CrossRefGoogle Scholar
Howe, Henry, Memoirs of the Most Eminent American Mechanics (New York, 1841).Google Scholar
Khan, B. Zorina, and Sokoloff, Kenneth L., “ ‘Schemes of Practical Utility’: Entrepreneurship and Innovation Among ‘Great Inventors’ in the United States, 1790–1865,” this Journal, 53 (06 1993), pp. 289307.Google Scholar
Khan, B. Zorina, and Sokoloff, Kenneth L., “Entrepreneurship and Technological Change in Historical Perspective: A Study of ‘Great Inventors’ during Early American Industrialization,” in Libecap, Gary, ed., Advances in the Study of Entrepreneurship, Innovation, and Economic Growth (Greenwich, CT, 1993), vol. 6, pp. 3766.Google Scholar
Ladd, Story B., “Patents in relation to Manufactures,” U.S. Bureau of the Census, Twelfth Census of the United States (Washington, DC), vol. 10 (4), pp. 751–66.Google Scholar
Lubar, Steven, “New, Useful and Non-Obvious,” American Heritage of Invention and Technology, 6 (Spring 1990), pp. 816.Google Scholar
Lubar, Steven, “The Transformation of Antebellum Patent Law,” Technology and Culture, 32 (10 1991), pp. 932–59.Google Scholar
MacLeod, Christine, Inventing the Industrial Revolution, 1660–1800 (Cambridge, 1988).Google Scholar
Mead Data Central, Lexis® Computer Database (Dayton, 1994).Google Scholar
Mokyr, Joel, The Lever of Riches: Technological Creativity and Economic Progress (Oxford, 1990).Google Scholar
Munn & Co., The United States Patent Law (New York, 1870).Google Scholar
Newmeyr, R. Kent, Supreme Court Justice Story: a Statesman of the Old Republic (Chapel Hill, 1985).Google Scholar
North, Douglass, Structure and Change in Economic History (New York, 1981).Google Scholar
North, Douglass, and Thomas, Robert P., The Rise of Western Civilization: A New Economic History (Cambridge, 1973).Google Scholar
Plott, Charles, “Legal Fees: A Comparison of the American and English Rules,” Journal of Law, Economics and Organization, 3 (03 1987), pp. 185–97.Google Scholar
Prager, Frank, “Changing Views of Justice Story on American Patent Law,” American Journal of Legal History, 4 (01 1960), pp. 121.CrossRefGoogle Scholar
Prager, Frank, “The Influence of Mr. Justice Story on American Patent Law,” American Journal of Legal History, 5 (07 1961), pp. 254–64.Google Scholar
Prager, Frank, “Trends and Developments in American Patent Law from Jefferson to Clifford (1790–1870),” American Journal of Legal History, 6 (01 1962), pp. 4562.Google Scholar
Priest, George, “The Common Law Process and the Selection of Efficient Rules,” Journal of Legal Studies, 6 (01 1977), pp. 6582.Google Scholar
Priest, George, “Selective Characteristics of Litigation,” Journal of Legal Studies, 9 (03 1980), pp. 399421.Google Scholar
Priest, George, “Measuring Legal Change,” Journal of Law, Economics and Organization, 3 (03 1987), pp. 193226.Google Scholar
Priest, George and Klein, Benjamin, “The Selection of Disputes for Litigation,” Journal of Legal Studies, 13 (01 1984), pp. 155.CrossRefGoogle Scholar
Sanders, Barkev, “Some Difficulties in Measuring Inventive Activity,” in Nelson, Richard R., ed., The Rate and Direction of Inventive Activity (Princeton, 1962), pp. 5390.CrossRefGoogle Scholar
Scheiber, Harry N., “The Impact of Technology on American Legal Development 1790–1985,” in Colton, Joel and Bruchey, Stuart, eds. Technology, the Economy, and Society: the American Experience (New York, 1987), pp. 83125.Google Scholar
Scientific American (03 18, 1865).Google Scholar
Schmookler, Jacob, Invention and Economic Growth (Cambridge, MA, 1962).Google Scholar
Sokoloff, Kenneth L., “Inventive Activity in Early Industrial America: Evidence from Patent Records, 1790–1846,” this Journal, 48 (12 1988), pp. 813–50.Google Scholar
Sokoloff, Kenneth L., “Invention, Innovation, and Manufacturing Productivity Growth in the Antebellum Northeast,” in Gallman, Robert E. and Wallis, John Joseph, eds., American Economic Growth and Standards of Living before the Civil War (Chicago, 1992), pp. 345–78.Google Scholar
Sokoloff, Kenneth L., and Khan, B. Zorina, “The Democratization of Invention During Early Industrialization: Evidence from the United States, 1790–1846,” this Journal, 50 (06 1990), pp. 363–78.Google Scholar
Story, Joseph, “Equity,” American Jurist, 1 (01 1829), pp. 134.Google Scholar
Story, Joseph, Commentaries on Equity Jurisprudence as Administered in England and America (Boston, 1886), vol. 1.Google Scholar
Surrency, Erwin, “Law Reports in the United States,” American Journal of Legal History, 25 (01 1981), pp. 4866.CrossRefGoogle Scholar
United States Patent Office, Annual Report of the Commissioner of Patents (Washington, DC, various years).Google Scholar
Weisberger, H. E., “State Control over Patent Rights and Patented Articles,” Journal of the Patent Office Society, 20 (03 1938), pp. 183216.Google Scholar
Young, Thomas J., “A Look at American Law Reporting in the Nineteenth Century,” Law Library Journal, 68 (1975), pp. 294306.Google Scholar