History of Technology Volume 24: Volume 24, 2002 9780826471864, 9781350019010, 9781350018990

Table of contents :
Cover
Half-title
Title
Copyright
Contents
Editorial
The Contributors
Notes for Contributors
Special Issue: Patents in History
Introduction. An Imperfection of Institutions
Notes and References
Antecedents to Intellectual Property: the European Pre-history of the 'Ownership' of Knowledge
Antecedents To Intellectual Property
Greek Concepts About Owning Ideas
Roman Developments
The Middle Ages And The Rise Of Guild Knowledge
Some Early Patents
Some Early Copyrights
Conclusion
Notes and References
Inventions and Privileges in the Eighteenth Century: Norms and Practices. A Comparison between France and Piedmont
Introduction
The Uses Of Exclusivity In France: The Case Of John Kay
John Kay's First Privilege: A Juridical Hybrid
John Kay's Privilege Reshaped: A Flexible Right
An Inventor Under Contract: Innovation Outside Exclusivity
Conclusion
Notes and References
The Spanish Patent System (1770-1907)
Introduction
The Institutional Environment
Evolution Of Registries And Basic Characteristics Of The System: Strong Technological Dependence
Applicants' Residence And Regional Distribution Of Patents
Legal Status And Socio-Professional Activity Of Applicants
Patents And Structure Of The Spanish Economy
Effectiveness And Duration Of Patents
Conclusion
Notes and References
The History of the First Patents for Steam Vessels in Russia
Prologue: The Idea Of Steam Vessels: Water-Moved And Horse-Moved Vessels
Robert Fulton
Charles Baird
Conclusions
Notes and References
European and Transatlantic Patent Transfer in the Salt Industry in the Era of Protoglobalization in the Last Quarter of the Nineteenth Century: Piccard's Salt Production Plants
Introduction
A Global Patent In The Context Of Globalization And Protoglobalization
The Salt Industry In Europe And The Usa
Piccard's Salt Production Plants
Conclusion
Notes and References
Patents and Technological Change in Late Industrialization: Nineteenth-Century Mexico in Comparative Context
Introduction
Comparative Patent Law And The Case Of Mexico
Mexican Patenting In Comparative Perspective
Conclusion
Notes and References
The Management of Intellectual Property at Home and Abroad: Babcock & Wilcox, 1850-1910
Introduction
Patents And The Foundation Of The Firm
Patenting
Patenting Activity And The Company Board
The Technological Trajectory And Fields Of Babcock & Wilcox Patents
Patenting And Director/Employee Conflicts
Litigation
Threats Of Litigation
Patents And The Competence Of The Company
Conclusion
Notes and References
Patent Agents, Legal Advisers and Guglielmo Marconi's Breakthrough in Wireless Telegraphy
The Patent Agents
Marconi's Move To London
Carpmael & Co
The First Attempt
One More Step, But Sideways
The Experts Are Called In
The Final Specification
Epilogue And Conclusion
Notes and References
International Patenting in Spain Before the Civil War
Abstract
Introduction
Patents And Foreign Investment In Spain
National And Foreign Technology In The Spanish Economy
The Technological Specialization Of Countries
Revealed Technological Advantages Of Nations
The Technological Level Of Patents And Countries
Conclusion
Notes and References
Contents of Former Volumes

Citation preview

HISTORY OF TECHNOLOGY

HISTORY OF TECHNOLOGY Editor Ian Inkster INSTITUTE OF HISTORICAL RESEARCH Senate House, University of London, London WCIE 7HU EDITORIAL BOARD Professor Hans-Joachim Braun Universitat der Bundeswehr Hamburg Holstenhofweg 85 22039 Hambur Germany

Dr Liliane Hilaire-Perez CNAM rue du Vertbois 75003 Paris France

Professor R.A. Buchanan School of Social Studies University of Bath Claverton Down, Bath, BA2 7AY England

Dr Richard Hills Stanford Cottage 47 Old Road Mottram-in-Longdendale Cheshire SKI 4 6LW England

Professor H. Floris Cohen Raiffeisenlaan 10 3571 TD Utrecht The Netherlands Professor Mark Elvin Research School of Pacific and Asian Studies Australian National University Canberra, ACT 0200 Australia Dr Anna Guagnini Dipartimento di Filosofia University of Bologna Via Zamboni 38 40126 Bologna Italy Professor A. Rupert Hall, FBA 14 Ball Lane Tackley, Oxfordshire OX5 3AG England

Dr Graham Hollister-Short Imperial College Sherfield Building London SW7 2AZ England Dr A.G. Keller Department of History University of Leicester University Road Leicester LEI 7RH England T.L. Martin Springlands Cottage Sandy Lane Henfield Sussex BN5 9UX England

Professor Carlo Poni Via Filopanti 4 40100 Bologna Italy Dr Saptal Sangwan National Institute of Science Technology and Development Studies Dr K.S. Krishmanan Road New Delhi 110012 India

History of Technology Volume 24, 2002

Edited by Ian Inkster

Bloomsbury Academic An imprint of Bloomsbury Publishing Plc LON DON • OX F O R D • N E W YO R K • N E W D E L H I • SY DN EY

Bloomsbury Academic An imprint of Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

1385 Broadway New York NY 10018 USA

www.bloomsbury.com BLOOMSBURY, T&T CLARK and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2004 by Continuum International Publishing Group Copyright © Continuum and Contributors, 2004 The electronic edition published 2016 Ian Inkster has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Bloomsbury or the author. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-0-8264-7186-4 ePDF: 978-1-3500-1899-0 ePub: 978-1-3500-1900-3 Series: History of Technology, volume 24 Typeset by BookEns Limited, Royston, Herts.

Contents

Special Issue: Patents in History, edited by Anna Guagnini and Ian Inkster Editorial The Contributors Notes for Contributors IAN INKSTER Introduction. An Imperfection of Institutions CHRISTOPHER MAY Antecedents to Intellectual Property: the European Pre-history of the 'Ownership' of Knowledge

ix xi xii xvii 1

LUISA DOLZA and LILIANE HILAIRE-PEREZ Inventions and Privileges in the Eighteenth Century: Norms and Practices. A Comparison between France and Piedmont

21

J. PATRICIO SAIZ GONZALEZ The Spanish Patent System (1770-1907)

45

DMITRI GOUZEVITCH and IRINA GOUZEVITCH The History of the First Patents for Steam Vessels in Russia

81

PETER PIASECKI European and Transatlantic Patent Transfer in the Salt Industry in the Era of Protoglobalization in the Last Quarter of the Nineteenth Century: Piccard's Salt Production Plants

95

EDWARD BEATTY Patents and Technological Change in Late Industrialization: Nineteenth-Century Mexico in Comparative Context

121

KRISTINE BRULAND The Management of Intellectual Property at Home and Abroad: Babcock & Wilcox, 1850-1910

151

Vlll

Contents

ANNAGUAGNINI Patent Agents, Legal Advisers and Guglielmo Marconi's Breakthrough in Wireless Telegraphy

171

JOSE M. ORTIZ-VILLAJOS International Patenting in Spain Before the Civil War

203

Contents of Former Volumes

233

Editorial

The present volume of the journal includes ten essays under the rubric of Patents in History, edited by myself and another member of the board, Dr Anna Guagnini of Bologna. As promised in our last volume, the function of the Special Issue is not only to isolate an interesting themes, but also to use it to illustrate several features of the history of technology. Our authors are all expert in their subjects and are more than able to use specific studies to illustrate the importance of institutional contexts in the emergence and development of technologies. Patent systems are worth studying as experiments in the establishment of intellectual property rights, and this is a major focus of the present collection. However, the nuances of the histories provide something more than that. In the vast number of cases, patents measure small change. In the remainder of cases, patents measure either no change at all, or great leaps of advancement. If no change at all at least does little harm to anything but the ego and effort of some individual inventors, then the securing of great changes might require the sequences of incremental small advance that together help to cheapen, broaden or modify their early use or usefulness. Take the case of the very real advancement of Macarthur and Forrest with their patent of 1887. This was for the commercial application of potassium cyanide solution to gold extraction.1 It was not well-specified, and amongst other omissions left in doubt the strength of solution required and whether cyanide or cyanogens were the active agency. In 1889 Macarthur secured a further patent to improve the process as applied to gold tailings by introducing a zinc filter in precipitation. This triggered a huge spread of the new process into the Transvaal, Australia, Canada and elsewhere. Initially this was governed by Macarthur and Forrest's Cassell Company, which operated through setting up companies in each of the appropriate foreign locations, and by providing expertise, signing syndicate agreements, and through establishing a training centre in Glasgow from which experts flooded into the gold regions of the world. Tailings and slimes that had been piled up as slag now awaited treatment and much money was to be made, small miners' syndicates were jolted into cooperative action in far-flung locations, and all those working on slight capital or slim margins had everything to gain from dodging around licensing and other requirements. In this situation the 1896-7 attempts by Macarthur and Forrest to amend and extend their original patent became an opportunity for challenge and ultimate rejection not merely by miners and mechanicians but by governments, including those of the colonial History of Technology, Volume Twenty-four, 2002

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Editorial

outposts of Victoria, NSW and New Zealand. Companies throughout the world operated on adaptations, especially using more dilute solutions of potassium cyanide than originally specified.2 The original patentees rejoined that such modifications were insignificant and could not be regarded as sufficient grounds for non-payment of fees. The result was a great chain of incremental patent lodgements as well as legal enactments, as a budding global system fought those who would ievy tribute on the whole of the mining industries'. 3 The point of the story is that even an imperfection of institutions may have worthwhile if not optimum results. Inadequacies, doubts and disputes could hasten a search for legal or technical alternatives that might generate an ultimate result superior to that provided by an ideal but closed system. Large change requires some process of adjustment. Mistakes involve learning. Are not these the sorts of characteristics associated with all convincing stories of machine and process improvement? It is hoped that our collection on Patents in History fully justifies the notion that history of technology embraces not only study of machines, structures and processes, but also a full understanding of motivations, interests and institutions.

Notes and References 1. G.T. Beilby, 'Ten Years Progress of the Cyanide Process for the Extraction of Gold', Journal of the Society of Chemical Industry, 1898, 8: 130-8; J. Park, The Cyanide Process of Go Extraction (London, 1906); H.F. Bain, More Recent Cyanide Practice (New York, 1910); M.W. von Bernewitz (ed), Cyanide Practice 1910-1913 (San Francisco, 1913); and the entire special issue 'Scientific Technical Session on Cyanides in Metallurgy', Transactions of the American Electrochemical Society, 1932, 60. 2. See for instance English patents 5236 (1884), 5318 (1893), 10399 (1891). 3. New South Wales Parliamentary Debates, Session 1896, 85 (October-November), 3703; Session 1897, 88 (June-July), 2230.

History of Technology, Volume Twenty-four, 2002

The

Contributors

Professor Edward Beatty Institute for International Studies 219 O'Shaughnessy Hall University of Notre Dame Notre Dame, IN 46556-0368 USA

Professor Anna Guagnini Dept of Philosophy University of Bologna Via Zamboni 38 40126 Bologna Italy

Kristine Bruland Dept of History University of Oslo PO Box 1072 Blindern, Oslo Norway

Dr Christopher May School of Politics University of the West of England (Bristol) Coldharbour Lane Bristol BS16 1QY

Luisa Dolza CNAM rue du Vertbois 75003 Paris France

Jose M. Ortiz-Villajos Faculty of Economics Universidad Complutense de Madrid Somosaguas Campus 28223-Madrid Spain

Professor J. Patricio Saiz Gonzalez Departamento de Analisis Economico Facultad de Ciencias Economicas y Empresariales Universidad Autonoma de Madrid Ctra. Colmenar km. 15 28049-Madrid Spain Dmitri and Irina Gouzevitch Centre Alexandre Koyre Museum National d'Histoire Naturelle Pavillion Chevreul 57 rue Cuvier 75231 Paris Cedex 05 France

Dr Liliane Hilaire-Perez CNAM rue du Vertbois 75003 Paris France De Peter Piasecki Max-Planck-Strasse 56 D-4625 Heme Germany

Notes for

Contributors

Contributions are welcome and should be sent to the editor. They are considered on the understanding that they are previously unpublished in English and are not on offer to another journal. Papers in French and German will be considered for publication, but an English summary will be required. The editor will also consider publishing English translations of papers already published in languages other than English. Include an abstract of 150-200 words. Authors who have passages originally in Cyrillic or oriental scripts should indicate the system of transliteration they have used. Be clear and consistent. All papers should be rigorously documented, with references to primary and secondary sources typed separately from the text, double-line spaced and numbered consecutively. Cite as follows for: BOOKS 1. David Gooding, Experiment and the Making of Meaning: Human Agency in Scientific Observation and Experiement (Dordrecht, 1990), 54-5. Only name the publisher for good reason. Reference to a previous note: 3. Gooding, op. cit., (1), 43. Titles of standard works may be cited by abbreviation: DNB, DBB, etc. THESES Cite University Microfilm order number or at least Dissertation Abstract number. ARTICLES 13. Andrew Nahum, T h e Rotary Aero Engine', Hist. Tech., 1986, 11: 125-66, esp. 139. Please note the following guidelines for the submission and presentation of all contributions:

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Notes for Contributors

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1. Type your manuscript on good-quality paper, on one side only and double-line spaced throughout. The text, including all endnotes, references and indented block quotes, should be in one typesize (if possible 12 pt). 2. In the first instance submit two copies only. Once the text has been agreed, then you need to submit three copies of the final version, one for the editor and two for the publishers. You should, of course, retain a copy for yourself. 3. Number the pages consecutively throughout (including endnotes and any figures/tables). 4. Spelling should conform to the latest edition of the Concise Oxford English Dictionary. 5. Quoted material of more than three lines should be indented, without quotation marks, and double-line spaced. 6. Use single quotes for shorter, non-indented, quotations. For quotes within quotes use double quotation marks. 7. The source of all extracts, illustrations, etc., should be cited and/or acknowledged. 8. Italic type should be indicated by underlining. Italics (i.e. underlining) should be used for foreign words and titles of books and journals. Articles in journals are not italicized but placed within single quotation marks. 9. Figures. Line drawings should be drawn boldly in black ink on stout white paper, feint-ruled paper or tracing paper. Photographs should be glossy prints of good contrast and well matched for tonal range. Each illustration must be numbered and have a caption. Xerox copies may be sent when the article is first submitted for consideration. Please do not send originals of photographs or transparencies but if possible have a good-quality copy made. While every care will be taken, the publishers cannot be held responsible for any loss or damage. Photographs or other illustrative material should be kept separate from the text. They should be keyed to your typesescript with a note in the margin to indicate where they should appear. Provide a separate list of captions for the figures. 10. Notes should come at the end of the text as endnotes, double-line spaced. 11. It is the responsibility of the author to obtain copyright clearance for the use of previously published material and for photographs.

History of Technology, Volume Twenty-four, 2002

Special

P a t e n t s

i n

Issue

H i s t o r y

Edited by A n n a Guagnini a n d Ian Inkster

I n t r o d u c t i o n . A n

I m p e r f e c t i o n

o f

I n s t i t u t i o n s IAN

INKSTER

A long time ago, the Belgian writer J.B.A. Jobard coined the awful term 'monotaupoly' in an effort to capture the peculiarity of the patent. This particular minting was intended to illustrate the notion of a 'monopoly of oneself, or what we might now label as an intellectual property right. In increasingly free societies, where markets abounded and competitors plotted with your enemies, why should anyone invent, and why should anyone else disclose their inventions, other than in mystery, by buffoonery, or through the triumph of the finished project? If the knowledge embodied in a new machine or process was truly radical and productive, and if by luck or genius it belonged to you and you alone, the only incentive to apply it on, or towards, any commercial scale was linked to the likelihood of personal financial gain. And the latter required some degree of political stability and civil certainty as well as the ability to keep things secret until a product was on the market. In an age of enlightenment, secrecy and civic trust made uneasy bedfellows, but they remained together for some goodly time. If the machine or product itself, by its very purchase and examination (and through what we Moderns might call reverse engineering) threatened exposure, then everything was to be gained in sowing mysteries and confusions around the discovery, holding back on essential ingredients, playing the medicine man. So, those clever brothers Demidov, in their 1750s tour of European metallurgy centres that was so clearly designed to extract the best of intellectual juices for Russia, gained ready enough access to lectures on experimental philosophy, but they found it quite impossible to penetrate the arcane practices of Birmingham or Sheffield cast steel production. 1 No real monotaupoly would be given away to sibling charms in that time of enlightened competition! But it was precisely in this eighteenth century that national patent systems began to emerge as more effective mechanisms of declaration, ownership, disclosure and dispersal.2 The authors of the articles in our special issue, Patents in History, highlight superbly the contradictions and complexities inherent in the History of Technology, Volume Twenty-four, 2002

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Introduction: An Imperfection of Institutions

development of a system of intellectual property rights. The essential contradiction that required resolution - between publication of a specification that makes it possible for a firm's competitors to have intimate working knowledge of an advance, on the one hand, and the protection then offered to an initiating firm as a manufacturer or licensor of the product under patent protection on the other - was formulated as a worthwhile trade-off by the great classical economists such as Bentham or Mill, and even Adam Smith acknowledged the need for appropriate state intervention. The patent was to be recompense for the time and effort of dangerous and expensive experiments. Christopher May and others of our essayists demonstrate that if solutions towards the trade-off varied, then the applications of such solutions multiplied geometrically at the very least. Differences between national patent systems as they emerged, both reflected different industrial, commercial and institutional trajectories, and at the same time reduced the feasibility of open transfers of technologies between nation states as well as within them - for which see the article by Peter Piasecki. As industrial systems matured and competed so too patent systems evolved in order to cope with the increasingly specific tasks of determining novelty and commercial viability through increasingly transparent processes of specification and registration, inspection and examination, challenge and defence. The winner group of industrializing nations indisputably gained thereby, as did their lawyers and experts. Contrariwise, those beyond this lucky pale suffered, and the escape from both institutional and technological dependency was highly problematic, as illustrated in the papers here by Ortiz-Villajos, Saiz Gonzalez, and Beatty. Of some 400,000 patents granted worldwide during 1905-10, over half came from the United States, Britain holding second place in front of Germany and then France. More profoundly, of all world patenting to that time - totalling around three and a half million patents - industrial Europe and the USA had contributed over 90 per cent, the rest of Europe some 7 per cent, and the rest of the world 2 per cent.3 Patent systems reflected the world at large, and in that world a pattern had been set. With all the heated talk of economic aid and development decades, the intervening years did litde to alter this global bias in the generation and ownership of intellectual property. By 1972 only 6 per cent of active patents were held in so-called developing nations, and over 80 per cent of this group were composed of patents held by foreigners.4 So, for the bulk of the twentieth century patent history reflected global economic history. It is true that towards its end some new enlightenments emerged, arguably forced by the speedy emergence of newly industrializing countries in East Asia. One positive outcome of the emergence of new industries such as biotechnology was that they at once offered seemingly immediate and attractive prospects (bio-energy, fermentation, treatment of wastes, improved vaccine production, and so on) yet at the same time confounded established systems of patent protection - the status of synthesized biological molecules even now remains uncertain.5 Another was that global reform talk did have some results, such as the attempts in latecomer industrial nations as well as in History of Technology, Volume Twenty-four, 2002

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struggling developing nations to establish protection through so-called utility models or petty patenting as a competitive alterntive to conventional international patent legislation.6 But with such possible exceptions, it might be argued that patent history has generally reflected the requirements of industrial capitalism rather than led the world into new institutional directions for the governance of national or global economic systems. Our contributors all illustrate how patent systems arose hand in hand with a more mature industrial capitalism, and show how institutional solutions and compromises that addressed the promotion of useful technologies varied significantly between such varied locations as Britain, Mexico, Spain, Russia and Italy. Centres of excellence were not always places of efficient encouragement and dissemination of technique, systems designed to spread best practice could often become disabled by politics and self-interest. The state was the necessary instigator and convenor of protective legal devices but is motives were only rarely aligned with those of mechanicians or business interests, and the latter two essential groupings as seldom agreed on what they wanted in an ideal system. But it did become increasingly apparent that some sort of patenting had some connection with some new types of economic growth.The eighteenth-century patents illustrated fluctuations with changes in the economic environment, with war and trade, as in the rises at the end of the War of Spanish Succession, and later with the termination of the American War of Independence. The identity seemed to be stronger with the claim that a decline in French patenting relative to British coincided with industrial stagnation in the former and industrial growth in the latter.7 The fact that in the twentieth century Germany, the USA and the UK all show strongly correlated patent cycles adds further evidence: all three nations exhibited drops in patenting around 1900, 1915-17, the early 1930s and 1950s, with striking shared peaks in 1895, 1929-30, and 1945-6.8 Perhaps more convincing is the recent evidence from Japan. Several of our authors show the institutional complexities involved in any transfer of technologies between national settings - see for example the articles by Beatty, by Piasecki, and by the Gouzevitens'. But by the later twentieth century there seems to be far less doubt that international patenting could be a vital instrument of industrial transformation in a latecomer economy. Between 1969 and 1981, a period of spectacular growth in Japan despite major problems elsewhere, the largest numbers of US patents within the US were those of the great American corporations, such as General Electric, IBM or Westinghouse. The first non-US firm was Bayer (Germany) with a ranking of 8 and a total number of US patents in that period of 5,134. The first Japanese firm was Hitachi, ranked 17, and clearly a Japanese invasion of the US system was then being orchestrated by the large trading companies (sogo shosha). By 1990, the top ten patent winners in the US were, in correct sequence, Hitachi, Toshiba, Canon, Mitsubishi, General Electric, Fuji Film, Eastman Kodak, Philips, IBM and Siemens.9 It is worthwhile for any historian to note at least one remarkable parallel to such a modern-looking enterprise invasion that occurred in the History of Technology, Volume Twenty-four, 2002

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Introduction: An Imperfection of Institutions

nineteenth century - that of the lodgement of patents by the large German dyestuffs firms into the British patent system during the later 1880s.10 In this collection we have tried to capture the evolution of patent systems during the long period of emergent and spreading industralism. At a time when mechanicians were not necessarily engineers, when patentees were yet rarely firms, and when formal technical training outside of the firm was seldom very effective, the less formal local environments of the technical innovators were of particular importance, as demonstrated in the paper by Dolza and Perez. In later years, with the growing importance of patenting by firms, the systems of intellectual property rights became both integral to and greatly affected by the development of coherent commercial strategies amongst organized enterprise, as shown in the interesting essays by Bruland and Guagnini. From this point the history of patent systems becomes increasingly entangled with the complex behaviour of international companies and their affiliates. As Porter warns, today any 'firm seeking competitive advantage should questions its strategy if it does not have at least one foreign technology monitoring or research site'.11 The tactics that such firms adopt may now centre much more on personnel placement, investment in local universities and research facilities, and invasions of domestic supplier bases, than upon use of open systems of intellectual property rights.

Notes and References 1. A.S. Cherkasova, 'The Urals and Europe in the Eighteenth Century', in S.V. Ustiantsev et al (eds), Russia and West Europe: Interaction of Industrial Cultures 1700-1950 (Ekaterinburg, 1996), 22-7. 2. For which in particular see Christine MacLeod, Inventing the Industrial Revolution.The English Patent System 1600-1800 (Cambridge, 1988), and Liliane Hilaire-Perez, L'invention technique au siecle des Lumieres (Paris, 2000). 3. Ian Inkster, 'Patents as Indicators of Technological Change and Innovation - An Historical Analysis of the Patent Data 1830-1914', Transactions of the Newcomen Society, 74 (2003), 179-208. 4. By this time the 85 or so 'developing' nations with patent laws had in the main been forced to subscribe to the articles of the Paris Convention, which with minor modifications had been in force almost 100 years. This means that such nations gave equal treatment to nationals and foreigners, which was analogous to Britain giving equal free-trading status to other European nations in the mid-nineteenth century. It was also noteworthy that by the late twentieth century over 90 per cent of foreign-owned patents registered in poor nations were never used in production processes in those countries: see SJ. Patel, 'The Patent System and the Third World', World Development, 2 (1974), 3-14. 5. For good general background for that period, see Robin Clarke, Science and Technology in World Development (Oxford, 1985), especially chapters 5-8. 6. Such petty patents being characterized by cheapness, lower novelty requirements, and shorter periods of protection. See Gustav Ranis, 'Determinants and Consequences of Indigenous Technological Activity', in Martin Fransman and Kenneth King (eds), Technological Capability in the Third World (London, 1984), 95-112. 7. See in particular the claims in Walt Rostow, How it all Began (London, 1975), and the depth of sceptical research in Hilaire-Perez op cit. 8. CD. Tuska, Inventors and Inventions (New York, 1957), 34-6. 9. Statistical Abstract of the United States 1983-83, Bureau of the Census (Washington, 1983) 548, Table 925; K. Azumi, 'Nippon Kigyo wa Dokusosei Yutaka', Nihon keizai Shimbun, 30 November 1985; Ian Inkster, Japanese Industrialisation. Historical and Cultural Perspectives (London, 2001), 279-81, 305-7. History of Technology, Volume Twenty-four, 2002

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10. 'The Coal Tar Colour Industry in Germany and England', Nature, 12 December 1901, 138-9. The 948 coal-tar patents lodged by the Germanfirmswere hardly matched by the 86 patent lodgements of the six largest British chemicalfirmsin their own patent system! 11. Michael E. Porter, The Competitive Advantage of Nations (London, 1990), 609.

History of Technology, Volume Twenty-four, 2002

A n t e c e d e n t s P r o p e r t y : P r e - h i s t o r y o f

o f

t o t h e

I n t e l l e c t u a l E u r o p e a n

t h e

' O w n e r s h i p '

K n o w l e d g e

CHRISTOPHER

MAY

Before there was a formal legal definition of intellectual property, there were many attempts to organize the control of valuable knowledge and information on behalf of various groups who stood to gain from its exploitation. New technologies certainly influenced the development of legal innovations that eventually coalesced into the recognizable beginning of intellectual property law in Venice in the late fifteenth century.1 However, technological development was not the only factor; the idea of the individual as 'creator' and the growing appreciation of the worth of information in increasingly complex markets also stimulated the emergence of ideas about the possibility of 'owning' knowledge and information. Law reflects social norms, although it is often also explicitly intended to (re) shape such norms; the interaction between law and social relations ensures that law does not exist in a vacuum, unaffected by shifts in social understandings of legitimate interests or justice.2 Laws need to be justified if they are to function without continual application of force and this often takes place through appeals to non-legal ideas about the role or purpose of legal control. When knowledge or informational items are to be the subject of rules that construct scarcity then such non-legal justification is required and this often takes the form of ideas about reward for effort or the 'efficient' use of knowledge resources.3 Intellectual property constructs a scarce resource from knowledge or information that is not formally scarce; unlike material things, knowledge and information are not necessarily rivalrous, and therefore co-incident usage seldom detracts from social utility. Whereas two prospective users must compete to use a material resource (and this competition is mediated through markets and the setting of a price), two or more users of any particular 'item' of knowledge or information can use them simultaneously without competing (where property rights are absent). However, it is difficult to extract a price for the use of non-rival (non-competitive) goods, so a form of scarcity History of Technology, Volume Twenty-four, 2002

2

Antecedents to Intellectual Property

needs to be introduced to ensure a price can be obtained for use. Therefore, for laws regarding the 'ownership' of knowledge to make sense, social ideas about the possibility of knowledge or information being attached to particular individuals (through 'ownership') also needed to emerge (or be developed). Before its first formalization in the Venetian statute of 1474, there was little that could be regarded as intellectual property proper, despite some interesting prototypical approximations, but ideas about owning knowledge were not novel in the fifteenth century. An important factor in the development of intellectual property was the desire of rulers to secure new technologies for the enrichment of the territories that they controlled. Patents emerged initially as grants of privilege that in some cases (but by no means all) had a clear intent to allow the dissemination of particular technical advances, benefiting the ruling groups through wealth creation. When this was the rationale, when grants of privilege were not primarily functioning as rewards dispensed to supporters and favourites, the award of grants emphasized a 'public-regarding' intent to further the encouragement of learning and the development of industry. In these cases rights to reward were not justified on the basis of 'natural rights' or the 'moral rights' of the putative 'author' or 'inventor', but rather reflected a perceived social need or future benefit. Justifications based on the author or creator would be mobilized only as intellectual property was formalized, broadened its range (geographically and by the scope of protection) and matured into the contemporary system. Nevertheless, ideas about owning knowledge crop up again and again in history, not least of all the focus on the individual as creator, and the tension this creates with the social value of the wide availability of knowledge and information. The history of these ideas is longer than the legal structures to which they are now applied. It may be that copyright originally represented the formalization of previously recognized moral or customary rights of authors.4 The condemnation of plagiarism and the acknowledgement of the theft of ideas certainly stretches back to the beginnings of recorded history. Nevertheless, the early recognition of the 'ownership' of ideas is almost entirely concerned with the retention of secret knowledge, rather than the rights to reward that remain with the author/creator once a work or innovation is disseminated. Thus, while it may be that pre-literate societies develop something which resembles a crude form of intellectual property, primarily in the way that magical practices (and practitioners' 'ownership' of such methods) is controlled,5 this is something separate. Rules and laws similar to intellectual property rights may have emerged in circumstances other than the early history of Western capitalism,6 but the form of intellectual property that prefigures modern developments is the product of a specific European history. The particular European history and pre-history of contemporary capitalism and its technologies, linking and intersecting with the manner in which societies have governed themselves (through legal mechanisms), and the changing perceptions of how innovation or creativity are linked to individuals (the changing idea of where knowledge actually comes from), lie behind the current History of Technology, Volume Twenty-four, 2002

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global settlement regarding intellectual property rights, encapsulated in the Trade Related Aspects of Intellectual Property Rights (TRIPs) agreement at the World Trade Organization.7 Although this special issue is primarily concerned with patents, I have included below material on the antecedents of copyright, because prior to the Act of Anne in 1710 there was much less of a clear distinction between the protection of ideas (patents) and the expression of ideas (copyright). Indeed, even in the eighteenth century this modern commonplace distinction can hardly be said to have been robust, and of course it is currently challenged by the discussions around the protection of software code, for instance. I also discuss early trademarks because through the limitation on production (by guild marking especially) aspects of later patent practice are prefigured. As we are interested here with how the notion of 'owning' ideas developed prior to the formal emergence of intellectual property, ideas about 'creative' property and guild ownership are a significant aspect of the emergence of the acceptance of ownership of knowledge and information more generally. ANTECEDENTS TO INTELLECTUAL PROPERTY Perhaps the first practice that separated out an information element from a material good was the marking of goods. Marks could indicate reliability and the reputation of the craftsman/maker as well as origin. Marking to establish ownership is a very old practice, preceding formalized laws to adjudicate disputes regarding ownership. The idea of marking by owners is likely to have started with the practice of branding animals, the earliest form of proprietary marking. Although such beginnings predate written history, there is widespread evidence from cave paintings of ear-cut branding and other techniques (of which burning a mark onto hide has remained in use). For more than six thousand years, humans across the globe have marked objects they made, found or obtained, and as Gerald Ruston notes, some of these marks were 'undoubtedly trademarks in the modern sense, that is to say marks denoting origin; [while] others were clearly marks identifying the goods with their possessor'.8 Marks were used to identify the maker, and also the owner (two separate marks were not uncommon in all sorts of items). Three types of mark were common: a family mark identifying the property of a certain clan or group (if they became merchants this mark could shade into the next category); the adopted trademark, which in times of mass illiteracy (or prior to formal writing systems themselves) was an important way of identifying specific wares; and thirdly the compulsory mark, which carried the authority of the state or ruler, usually to establish either legitimacy or confirm that taxes had been paid. This third category also includes the practice of hall marking (authorized by specific guilds, and often under royal charter) to govern the quality of metals being used to fashion particular commodities.9 With the emergence of formal regimes of law, such practices were codified and given a legitimacy further afield than the local community in History of Technology, Volume Twenty-four, 2002

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which they had an immediate social significance. There is also evidence from ownership stamps on pottery and other household items excavated from prehistoric sites in Europe and Asia, indicating that such practices were widespread and common. By the time of the Egyptian and Mesopotamian empires, manufacturers of bricks were marking their products, alongside the name of the ruling king and the owner of the building where the bricks were used. Stonecutters recorded either the name of the contractor or the individual stonecutter on masonry used for building during this and subsequent periods, possibly to calculate wages for their teams of workmen based on output.10 In the Greek city states this recognition that particular goods might be valued more highly by virtue of the identity of the maker started to spread from material goods to cultural products as well. GREEK CONCEPTS ABOUT OWNING IDEAS The transformation in intellectual activity that would be central to the emergence of intellectual property many centuries later can first be identified in ancient Greece. This is not to claim that intellectual property emerged (in any form) in the Greek society of Simonides and other poets, but they seem to be the first 'creatives' to become intellectual entrepreneurs in a sense that we might now recognize. Before this shift in attitude, artists, poets or singers, as well as intellectuals, were kept (rather well in many cases) by a patron, and were expected to perform on demand. This was supplemented by prizes for recitations in public, as well as paid performances (similar to recitals). The Sophists are reputed to be the first group to earn significant rewards through their freelance teaching activities. However, the Sophists, while earning payment for their services, do not seem to have regarded the content of their teaching as subject to any form of ownership, despite the appearance of manuals in many things they taught (from wrestling to household management). Mostly these were produced by the audiences and then copied by others interested; there was no technology of publication as such.11 Critics of the Sophists often argued that by allowing their ideas to be set down in writing they lost control over who could read and benefit from their knowledge,12 implying that the Sophists did not regard the knowledge or information itself as an ownable commodity. Rather they may have regarded these manuals and other publications as publicity for their teaching activities (by expanding their reputation). Socrates once likened the Sophist to 'a salesman of the goods by which the soul is cared for'.13 But essentially these 'goods' were rhetorical; the Sophists were teachers of thinking and doing, rather than providers of defined intellectual commodities. Poets, on the other hand, produced a clearly defined product: the poem. Simonides is often depicted as the first poet to have demanded a fee on a poem-by-poem basis; the first freelance commercial poet. He is therefore at the centre of many anecdotes from Greek writers on the greediness of poets,14 although this may be because History of Technology, Volume Twenty-four, 2002

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he was eminent enough to become at least partly exemplary of all poets. Nevertheless, Anne Carson points out it is not unlikely that Simonides was the first to professionalize poetry because current research suggest that the circulation of money coincided with his lifetime, and someone must have done it. However, she also notes, 'Simonidean greed was more resented in its essence than in its particulars. Its essence was the commodification of previously reciprocal and ritual activity, the exchange of gifts [of poetry] between friends'.15 Even during his life Simonides was not alone in successfully demanding fees for specific works: Pindar also received on a number of occasions significant monetary rewards for the delivery of poetical works.16 The circulation of money may have been a necessary condition for this sort of commodification, but it was not sufficient. Ideas about the origin of poetry and creativity had also to change. It was not uncommon to find in Greek culture from the sixth century BC onwards poets claiming to be authors of specific works and artists who signed their paintings or illustrations.17 Mladen Vukmir takes the appearance of makers' marks (and signatures) on works of art as 'reliable evidence of a recognition of the proprietary nature of artistic activity' being both a 'recognition of personal achievement and a warning of ownership' of the creative content.18 Certainly the 'consciousness of the high quality of one's own work and technical achievements at a level that would be hard to surpass' was already part of the mental universe of the poets of the second half of the fifth century BC.19 And the link between this perception of self-creation and payment was frequently made explicit in the verses themselves. Stanslaw Gzella suggests that the 'choral poet was not above telling his audience point-blank that he expected to be duly remunerated. He recalled to his customer's mind his indebtedness on account of the poetical services he had rendered him. He argued the reward fell to him by rights'.20 But while there was a contract relationship between the poet and the purchaser, and although this relationship included the provision of poems, the notion that the poem was intellectual property, in a modern sense, is absent. On the other hand these are clear antecedents: the valuing of creativity and its monetary reward being based on the unit of output, rather than the service provided. Furthermore, Simonides is reputed to have believed 'poetry is an art that sells its products in the marketplace'.21 In Greek society during the sixth and fifth centuries BC therefore we can see the first emergence of the idea of creativity that subsequently would underpin the ownership of knowledge. The authorial function that emerged in the Romantic view of the author as individual genius in the seventeenth and eighteenth centuries finds its distant origins in Greece. While there was already a considerable market in intellectual services, chiefly involving various sorts of instruction, some poets moved beyond the issue of service provision, to propose a form of early commodification of poems themselves. The combination of a means of exchange (and a putative market), alongside the emergence of an individualized notion of creativity, allowed a rudimentary form of market in poetry to begin to develop. During the sixth and fifth centuries BC the History of Technology, Volume Twenty-four, 2002

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organization of some form of market joined the previous models of gift exchange in Greek proto-economic relations.22 This slow development of a new mode of interchange between producer of goods and user was no less likely to have influenced the intellectual arts than the mechanical. Poetry may have been the first 'creative' activity to be (partially) commodified, but it was by no means the last. The emergence of the notion of the individual as creator of art which might have some extra-communicative value, a value beyond its immediate content linked to the identity of its maker, is a crucial and foundational moment. Certainly, in early Greece individuals managed to enjoy reputations related to their skills in working their craft to a high level. But only with the Roman Empire did more market-oriented activities and problems associated with contemporary intellectual property start to emerge a little more clearly. ROMAN DEVELOPMENTS The artist as individual genius still did not emerge as a conceptual commonplace in Imperial Roman society despite some moves in that direction in the Greek culture of the preceding centuries. In the industrial arts, Roman use of craftsmen's marks was a further development towards some form of trademarking. This marking of goods was a continuation of the earlier Greek practice, and as Stephen Ladas points out, when these inscriptions were not personal marks satisfying personal sentiment 'they were ... either official marks affixed by public authorities for the payment of tax, or as a means of disclosing the existence of a state monopoly, or devices for the settlement of accounts between an entrepreneur and his workmen'. 23 But even if marks applied to goods and traded items in the Roman economy seem to have served a role approaching that of trademarks today, there is no trace of these marks being legally constituted. The mark represented the honesty or integrity of each manufacturer, but it was impossible for the mark's originator to launch a civil action against an infringement of a mark. However, Roman Law may have allowed a purchaser to bring an action against the vendor of goods with a fraudulent mark, for deceit and the intent to defraud. In this sense an early law of 'passing off might be said to have existed, even if the mark's originator was not accorded any special rights over the mark itself. Unsurprisingly perhaps, with the lack of formal legal recourse, piracy of specific trademarks was a problem: for instance, the mark 'Fortis' moved from a proprietary mark to a generic term. Roman oil lamps were traded throughout the Empire, and those of the most famous maker, Fortis, were especially valued. However, the lamps and the maker's mark were extensively counterfeited across Europe by local makers. Finally, the term became the term for a certain sort of lamp, rather than an indication of manufacture by Fortis.24 Pirates in the first century AD also produced imitation Roman pottery in Belgium. And while, due to their ignorance of Latin, infringers' marks were often simply meaningless collections of letters, they deceived the still more ignorant Britons who imported the pots.25 History of Technology, Volume Twenty-four, 2002

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Although, as noted above, some possible action was available to the purchaser on discovery of the counterfeit, this could only be undertaken by individual buyers (class actions were unknown), and the original proprietor remained unprotected from piracy of this sort (his brand could continue to be diluted). Under the Lex Cornelia de iniuriis c.81 BC, taking another's name for profit was prohibited, but there is no evidence that a link was made between such illegality and the infringement of trademarks.26 Furthering developments in Greece, the Roman publishing industry, or more accurately the organized production of multiple copied scribal texts, emerged and expanded in the first century BC originally in Alexandria, then moving to Rome in the 50 years before AD 100. As had happened previously in Greece, authors were frequently supported by patrons and did not directly receive money from the 'publication' of their works. However, a new model of authorship slowly started to become established, with a direct link between author and the sale of specific works. Before long, a rudimentary concept of literary property emerged. Salathiel Masterson suggests that 'Cicero apparently had a direct business interest in the sale of his books, that is, his publishing arrangements were on a royalty basis' and that on his demise 'there is evidence that his works and the right to their continued publication were bought from Atticus by the bookseller Dorus'.27 Therefore, despite the formal lack of an approximation to modern copyright, it is plausible that the well-developed Roman publishing industry did recognize something that might be termed intellectual property. Authors contracted with publishers to reproduce and distribute their work, suggesting that there was some recognition that authors had legitimate rights over these works. Furthermore, the Romans seemed to distinguish between authorial rights to protect the integrity of the work, and the right of reproduction. 28 However, patronage remained the dominant form of literary and artistic compensation during this period (through direct support or by prizes), and unless the author was independently wealthy enough to publish a book, the income from sales was likely to be negligible. Not least of all due to the slow process of copying manuscripts, the literary world of Rome circulated books rather than sold them. This process was sometimes speeded up by the use of slaves, and where authors were popular they might through a 'courtesy of trade' assign exclusive distribution rights of their works to a specific bookseller.29 Nevertheless, the rights accorded to authors were limited to their 'right' to be recognized as an author (a guard against plagiarism) and did not usually extend to the recognition of commercial property in their forms of expression. The Justinian Digesta, under the title actio servi corrupti, is a further precursor to modern law. This allowed the keeper of slaves to take legal action against someone who bribed a slave to reveal the trade or business secrets of his owner/employer.30 This institutionalized a form of proprietary rights in knowledge, inasmuch as trade secrets are a form of intellectual property. However, whatever protection might have been claimed by recourse to the legally enforceable monopolies under Roman Law was abruptly halted in History of Technology, Volume Twenty-four, 2002

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480 AD by the Emperor Zeno who issued a proclamation, which asserted that: 'No one shall exercise a monopoly over any ... material, whether by his own authority or under that of an imperial prescript heretofore or hereafter promulgated'. 31 Thus, in the closing years of the Roman Empire monopolies could only be granted on the basis of specific and high-level governmental authority. And while Roman Law did not afford much protection of property in knowledge, with the Zenoian declaration, even that protection became unavailable except in exceptional circumstances. Indeed while we might infer that some proto-forms of intellectual property existed, there are no reported or recorded cases under Roman Law.32 Hence, any discussion of intellectual property in Roman Law is at best conjecture. It is uncontroversial that many Roman goods that were traded throughout the Empire (and beyond) were marked with a form of trademark, or maker's mark. But this does not indicate a formalized law of intellectual property within Roman Law, although the recognition of the ownership of aspects of knowledge may have existed as a form of acceptable practice. Furthermore, as Jill Harries points out, 'much of Roman law existed, not for the purposes of social control, but for the regulation of legal relationships between Roman citizens and it was up to litigants to make use of it as they saw fit'.33 Given the risks of entering the costly (and sometime arbitrary) Roman legal system, alongside the rudimentary and partial protection accorded to information (and trade secrets) it is hardly surprising that no body of private Roman case law has been discovered in this area. After the decline of the Roman Empire these early (and essentially unformalized) ideas of ownership rights in knowledge or intellectual creations did not entirely disappear. One dispute in sixth-century Ireland has sometimes been identified as the first relatively formal copyright dispute.34 As no such thing as copyright existed at this time, such claims are exaggerated, but nevertheless the case has some totemic resonance. It concerns Saint Columbia, who in the year 567 surreptitiously copied a psalm book belonging to his teacher, Finnian of Moville. When Finnian objected, the dispute went before King Diarmed. The king concluded that both the original and the copy belonged to Finnian saying, 'To every cow her calf, and accordingly to every book its copy'. Diarmed saw the book as Finnian's property, the ownership of which entitled Finnian to its product, the copy.35 There is considerable doubt as to whether the reported story ever took place,36 but its mythical quality does not detract from its importance as a signal of the continuing appeal of the ownership of knowledge. Legends may exist not so much as accounts of reality, but rather of the way in which attractive and useful ideas can remain in circulation for later (re)use. The legal hiatus after the fall of the Roman Empire did not kill off the desire to own ideas and knowledge. In the following centuries the notion that knowledge might be valuable, and that rights of control (and exploitation) could be in some way established, was once again developed by the guilds History of Technology, Volume Twenty-four, 2002

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in the desire to protect their specialized knowledge (on behalf of their members, and against those outside the guild). THE MIDDLE AGES AND THE RISE OF GUILD KNOWLEDGE During what used to be termed the Dark Ages, monasteries were the main repositories of knowledge resources in the form of manuscripts, and the monks' learning. While manuscripts were certainly highly valued, no particular significance was accorded to any particular manuscript in addition to a recognition of the hours spent in its copying (reproduction), and the materials it was made from: 'The property was the particular manuscript and not the form of ideas it contained'.37 With the rise of the universities after the twelfth century, these intellectual resources started to be transferred to the new institutions. However, their regulations served to ensure that no proprietary right over the written word could be established. Masterson argues that these regulations 'were of such a character as to destroy the author's rights in an original work, it being generally provided that manuscript dealers could not refuse to loan a copy for hire to a member of the university even though the purpose of the member was the producing of copies'.38 Thus, any budding notion of literary property that had survived from Roman practice was rendered ineffective until the grants of patent monopoly in publications emerged in the late fifteenth century. However, during the Middle Ages knowledge of another sort was accorded some recognition as putative intellectual property. A proprietary form of (trade)mark has (re)emerged from the earlier Greek and Roman practices. The need to identify guild work, and to enforce their chartered monopolies, required a method of differentiating guild-sanctioned goods from others. Prior to this period, ancient guilds do not seem to have regarded craft knowledge and its manifestation in goods as proprietary.39 But, during the thirteenth century this started to change. For instance, on August 28 1282, during the tenth session of the City Council of Parma, a statute was enacted: for the protection of guilds and artisans in this state, and to prevent many frauds which are or may be committed upon them; - that no persons in the trade or guild shall use the mark of any other person in such trade or guild, nor place such mark, or similar one, upon knives or swords; and if any person in such guild has continuously used a mark upon knives, swords or other steel or iron articles for ten years, and any other person is found to have used, within one or two years the same mark or an imitation thereof, ... whether stamped or formed in any other way, the latter shall not in future be allowed to use such a mark upon knives, swords, or other steel or iron articles, under penalty of ten pounds of Parma for each and every offence, and that regardless of any compromise or award of arbitrators, which may have been made.40 Similar statutes covering the products of different guilds were passed by History of Technology, Volume Twenty-four, 2002

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various authorities across Europe during this period and after. By the fourteenth century when the first guild in England was organized by weavers, such perceptions of guild knowledge were becoming more commonplace. The weavers, closely followed by the goldsmiths (both groups received charters form Henry II in the 1320s), intended to control their trade for their own profit. Over the next century a number of other trades also established guilds with a similar rationale.41 Guilds were membership organizations based on particular trades and one of their primary purposes was to control the conduct of the trade by operating a monopoly, ensuring ruinous competition was avoided by limiting the number of practitioners in any particular local market. Even if the guilds never called it intellectual property, the assertion that they owned the craft knowledge and practices of their occupation, collectively as guild members, exhibits the recognition of value that could be gained from the establishment of a scarcity of knowledge (in this case through guild membership). Two separate uses of trademarks were established: merchants' marks and production marks. The former were placed on goods consigned for shipment, and were regarded as proof of ownership when stolen or shipwrecked goods were recovered. The production marks were more like modern trademarks and their use was 'rigidly controlled by the guild system'. Indeed, the use of the marks was compulsory for guild members: marks were a mode of regulation, enabling the tracing of defective goods and punishment of the offending craftsman, for the collective good of the guild. They also assisted the prevention of non-guild members selling their products within the area of the guild monopoly.42 The trademark was yet to become an asset representing the stored (and earned) good will of a particular merchant or company. Nevertheless, it represented a key aspect of the proprietary knowledge of the guild, inasmuch as it was a symbol which they owned and which no other group (specifically those outside the guild) could legitimately use. Marks indicated that goods had been produced by guild members, as well as showing their origin and indicating that inspection, and approval, had been obtained from the appropriate authorities. Trademark protection was therefore perhaps the first form of intellectual property to attain a form of expression which might be regarded as comparable with current law. It was intended to construct a form of scarcity in the production of goods (and the delivery of services), to shore up the price obtainable and thus protect the welfare of guild members. The guilds already recognized that their marks added competitive value to their products by differentiating them from non-guild goods which might not be produced to the same standards, which might not have been authorized, or which might have been illegally imported. But the scarcity of guild goods also ensured a premium could be secured. In parallel to later patent law, these guild marks established who had the right to produce certain goods. Within the guilds there was an additional recognition that individual members might have an exclusive right to certain knowledge. Thus in 1432 the Genoese silk manufacturers adopted a number of general articles for History of Technology, Volume Twenty-four, 2002

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the governance of their practices, of which one clearly stated: 'if anyone of said guild has had some pattern or figure designed, no one else shall have such figure or pattern worked'.43 In 1474, the same year the Venetian statute was adopted, the Florentine Woollen Guild adopted a more specific article, which stated that it 'has been noted that certain fabricators of figured serge, by their own efforts have invented designs and patterns for figured serge, and that many other fabricators of such material are trying by means of fraud and deceit to steal such patterns from said fabricators'.44 The use of the word 'steal' clearly signifies that such knowledge (patterns and designs) was regarded as property, while the focus on members' 'own efforts' exhibits the sort of understanding of innovation which lies at the centre of contemporary patent law. As craft knowledge became more clearly valuable, it also became subject to envious appropriation. The false marking of competing goods not produced by the guild was recognized as the theft of a form of intangible property as it infringed the rights of the guild to mark as it saw fit within regulations established by the guild and the political authority who maintained their monopoly. Edward Rogers noted that from the 'thirteenth century, the copying of valuable marks became so common and so injurious that infringement was made a misdemeanour and in some cases even a felony and was punished in the barbarous manner of the times'.45 Under Charles V for instance, sixteenth-century pirates of tapestries were punished by having a hand cut off; pirated goods were usually cheaper and a form of competition that guild members needed to forcefully resist by halting their production. Hence, while arguments about quality and reliability might have been appealed to, one can also recognize the interests of a monopoly producer. However, individuals who broke from their guilds, taking their stock of guild knowledge with them, in many cases were able to arrive in a new jurisdiction claiming their knowledge was innovative and therefore amenable to protection through the introduction of some form of marking law. Where such legislative moves were successful, the protection of knowledge as a property right was established but as importantly, knowledge itself was individualized. Previously communal knowledge was rendered as belonging to the importing individuals. Furthermore, once protection as property was married to the notion of the individual as knowledge creator (the genius or inventor) the scene was set for the typical patent dispute: arguments over priority. And therefore it is hardly surprising that during the sixteenth century, disputes between contemporaries over precedence in invention or discovery become much more frequent. 46 This individualization of intellectual property struck at the heart of guild knowledge ownership, the members themselves became the possible owners of novel practices they developed, not the guild membership in general, and the stage was set for the further development of the notion of intellectual property.

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SOME EARLY PATENTS Prior to the legal formalization of intellectual property laws in Europe, Paul David suggests that patents 'typically took the form of grants for the exclusive exploitation of locally unfamiliar processes or devices that had been originated elsewhere'.47 Patents were grants of privilege by the particular sovereign into whose territory such practices were being introduced. Thus, P.J. Federico found that already in 1326 the British king was keen to encourage the importation of 'new arts'. This policy produced the 'earliest known instance of a royal grant to foreigners in the letters of protection given to John Kempe and his company, Flemish weavers, by King Edward III in 1331', and similarly, 'letters patent [were] granted in 1440 to John Shiedame to introduce into England a newly-invented process of manufacturing salt'.48 Technology transfer was at the heart of this desire to establish patents, driven by the desire to reduce imports and expand exports.49 At this time England was lagging behind some of the continental economies, and the king was interested in how craftsmen and merchants could 'borrow' more advanced industrial practices. Indeed, as David points out it was hoped that the 'foreign master craftsmen would introduce English apprentices to the "mysterie" of their respective arts; but because they were not likely to remain in control of the newly skilled workers once they had passed into journeyman's status, a cohort of potential domestic competitors would thereby be created from whom the foreign master obviously wished to be protected'. 50 Thus the award of monopoly rights over the trade (for a period of fourteen years; twice the period of apprenticeship) would in the long run ensure not only technological transfer, but also a body of accomplished practitioners once the patent expired. Rather than aiming to protect practices from leaving the territory without due reward, these early patents were a method for encouraging the migration of artisans (bringing with them new practices) to the territory or country concerned. These grants of monopolies were reasonably widespread thoughout Europe as the Middle Ages waned, not least of all due to increasing international competition in certain economic sectors (woollens being perhaps the most important). Frank Prager identified certain grants of privilege during the Middle Ages as 'quasi-patents', which were limited to mining operations, various water systems, and other commercial activities. But while these were exclusive grants they were not limited to new inventions, and really were more a form of building permit or more accurately in many cases a license to hold a monopoly. The Duke of Saxony in 1398 granted one such 'quasi-patent' regarding paper making, although the practice of paper making had been known in Toledo by 1000 AD and in Nuremberg by 1390.51 The grant was enforced through the duke's control of the power (the water in the river) and its denial to other paper makers under the grant. Privilege systems were only occasionally applied in ways that might resemble an early form of intellectual property, although a number of letters of patent that broadly conform to a notion of proto-intellectual property have been found in archives, with one of the most developed sets preserved in the archives of Venice.52 History of Technology, Volume Twenty-four, 2002

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Pamela Long suggests that 'patent laws emerged as an aspect of medieval urban economic policies associated with maintaining control over the crafts, maintaining possession of the benefits of craft knowledge, and encouraging innovation'.53 Certainly, these ideas spread more widely when those who broke away from guilds set up in new industries, and wished to claim possession of craft knowledge but had no organized guild to protect them from copying and competition.54 Furthermore the revival of Roman Law since the twelfth century may also have stimulated the development of a notion of intellectual property, by stressing individual rights and contract-based legal system.55 But like Prager, Marcus Popplow suggests that the idea of a grant of patent also finds elements of its origins in the grant of privileges over mining in the late Middle Ages. He argues that the juridical practice of patent grants developed from the custom of granting privileges to mining entrepreneurs as well as to merchants (and others) for the introduction of new 'arts' or skills to towns. These privileges were intended to defray mining's high costs by awarding a monopoly privilege. The 'granting of privileges for inventions developed north of the Alps from the practice of granting the right to exploit mines to the "first finder" and from the regulations concerning compensation for expenditure in digging drainage channels'. 56 Later, when new water-lifting devices were developed to drain mines, Popplow suggests this precedent was followed to protect mine owners from unauthorized copying of their devices. Not all grants included clauses forbidding the copying of devices being used. And during the fifteenth century it became increasingly common that privileges replaced the prohibition of copying with the possibility of licensed construction, thus freeing the privilege holder from actually building the device concerned. This practice was further developed in Venice to allow professional engineers to utilize their protection against unauthorized copying to secure the finance for particular projects, prior to any final construction of the machines or devices covered by the patent. If one has to nominate the first 'modern' patent, the moment when the pro to-patent appeared most explicitly, then Filippo Brunelleschi's is as good a candidate as any. Some 50 years prior to the Venetian statute of 1474, the Florentine authorities awarded a patent to Brunelleschi for a new design of vessel he would build to move loads more cheaply along the Arno river. In the text of the petition for award of the patent the bargain which was to be entered into was explicit: [The petitioner] refuses to make such machine available to the public in order that the fruit of his genius and skill may not be reaped by another without his will and consent, and that, if he enjoyed some prerogative concerning this, he would open up what he is hiding and would disclose to all.57 Thus the public benefit of making available the particular innovation to whoever might wish to make use of it, was bought by the authorities through a reward to the innovator. This patent combined a very wide scope, forbidding anyone to operate any new means of water transportation in Florentine History of Technology, Volume Twenty-four, 2002

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territory without Brunelleschi's consent, with a limited term of protection; the grant was only for three years. In this it represented the two extremes of future patent provision: scope and temporality; and, unlike previous grants of monopolies, it clearly asserted its reliance on the recognition of novelty.58 The monopoly was somewhat compromised when the vessel apparently sank on its maiden voyage carrying marble on the Arno. Although Brunelleschi's grant was in one sense the first patent for innovation, the Florentine authorities did not issue a further similar grant in the following 50 years, and nor was it made general law through a legal statute. Bruce Bugbee suggests this lack of continuity leading to a 'stillborn' system of patents for invention can be attributed to guild rivalries, the limitation by decree to rewards by tax incentive only (in 1447) and the ascendancy of the Medici family who preferred patronage as their system of rule.59 But this still demonstrates that although the first formal legislation occurred in Venice, the nascent idea of intellectual property (and specifically grants of patent) was more widespread than just the environs of the lagoon. SOME EARLY COPYRIGHTS Whereas the early or pre-legislative history of patents was concerned with individual practitioners (who could be, though were not necessarily, the innovators), the early history of copyright is largely concerned with material artefacts. After the fall of Rome any consideration regarding the rights of authors lapsed, along with Roman Law. Proto-copyrights were unrecognized until the Renaissance when the innovation of the printing press stimulated the accelerated distribution of knowledge. Until then the Middle Ages had remained predominantly an oral culture, and for the popular troubadours (whose names have seldom carried across history) to retain 'literary rights' in their works would have required them to keep their stories to themselves. One way round this was to seek patronage, as had happened in Roman times, or to offer to sell copies of their songs and stories to other performers (or offer to teach them the words), for a fee.60 Either way, the ability of the writer to retain rights over the product once it was being delivered by others was not easy, nor effective. Nevertheless, by the fourteenth century Petrarch 'insisted in his letters that it was his sole right to permit or prevent the copying of his texts, until he himself had given it to the public (i.e. had it published) and that he alone controlled the authenticity of the text'.61 Following the fifteenth-century invention of mechanical processes, printing and bookselling emerged as major industries. And once printers were producing books for sale, they sought some right to restrict copying to ensure that other printers did not pirate their books prompting a form of legislated copyright to emerge. This closely parallels the needs of the guilds to ensure their products were not reproduced outside the membership, although for this emerging copyright the locus of protection was no longer the group but the individual producer. Indeed, only eighteen years History of Technology, Volume Twenty-four, 2002

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after Gutenberg printed the first book using movable type, in 1469 John de Spira was granted the exclusive right to print the Epistles of Cicero and Pliny in Venice.62 Another method of trying to retain control was to seek grants of patent (or privilegii) for certain forms of printing; perhaps the most significant was the grant over the right to print Greek and Latin texts using italics awarded to Aldus Manutius of the Aldine Press in 1502 by the Venetian authorities (a grant almost immediately subject to severe challenge). 63 Even before the arrival of printing illuminators of manuscripts had developed a rudimentary method of taking multiple copies from a single illustration using a kind of tracing paper and during the fourteenth century Marcel Thomas notes that there were 'frequent cases of quarrels and even brawls between illuminators accusing each other of stealing the original cartoon, a priceless resource'. 64 An illustration depicting an event in an expensive manuscript was valuable on the basis of the value it added to the book (with better illustrations worth more and thus worth appropriating by 'theft'). Furthermore, according to guild documents from the thirteenth century, not only did the stationers and booksellers operate a monopoly in general terms regarding their trade, in some cases they awarded monopolies over the multiple reproduction of any work to the master who obtained an order for it.65 The grounds on which artistic property could be developed were therefore in place before the advent of printing started to make their development a serious issue for those involved in the book trade. As printing became an emergent industry with a stream of new entrants (often workers from established presses who set up on their own in rivalry with the erstwhile masters), competition emerged to produce valued and saleable texts, which Elizabeth Eisenstein argues spurred heated debates concerning monopoly and piracy. She goes on to argue that printing 'forced the legal definition of what belonged in the public domain' leading to the 'enclosure' of a previous literary 'common', as 'possessive individualism began to characterize the attitude of writers to their work'.66 Many of the legal innovations that laid the foundations for later copyright laws were first developed in the late fifteenth and early sixteenth century as the extensive Venetian publishing industry oscillated between boom and bust.67 However, despite these precursors to the development of copyright, the artist or author as individual creative genius did not emerge much before the eighteenth century.68 If Alan Macfarlane is correct to argue that individualism first emerged in England due to the specific circumstances of feudal and peasant society,69 then it might also be expected that intellectual property would also have emerged first in English law. And indeed, such a claim could be made on the basis of the Statute of Monopolies (1624) and the Act of Anne (1710), both of which represented significant legal innovations (representing the formal origins of modern patent law and copyright law respectively); but as is indicated by the above account, this is not the whole story.

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Antecedents to Intellectual Property

CONCLUSION Jacob Burckhardt famously made the claim that the notion of individualism, most specifically in the realm of the arts, can be traced to its emergence in Renaissance Italy.70 In this period the individual's 'supreme worth was openly proclaimed'. 71 Only as the products of intellectual endeavour began to enjoy an economic value over and above their material manifestation, would intellectual property develop as an institution, and its formal history commence. In this regard, the Venetian authorities took the first crucial step in developing intellectual property over 100 years before the English legislated for its protection, reflecting the already long history of the notion of the 'ownership' of knowledge and ideas. The system developed in fifteenth-century Venice was explicitly utilized to promote innovation. For the first time a legal and institutional form of intellectual property rights existed to establish the 'ownership' of knowledge. Venice was the first jurisdiction to develop a patenting system rather than merely the occasional granting of monopolies. As Giulio Mandich notes, in Venice an award of a patent meant that protection was extended to an inventor, provided his invention was recognized as useful; that the patent term was limited; that the right was transferable inter vivos and mortis causa; that it was subject to a compulsory license in favour of the state; that a patent was forfeited by failure to use it within a certain term; and that it failed in cases of prior knowledge within the territory of the Republic.72 Thus, this is the beginning of intellectual property's history as a formalized institution, rather than in the British law of monopolies in the next century. While intellectual property did not emerge fully formed in Venice, the subsequent history of legal 'refinement' has had much less substantive effect on the central tenets of patent, and intellectual property than the transformation enacted in the Venetian statute of 1474 had relative to previous arrangements, or more accurately their formal absence. But the central ideas of intellectual property had already been largely developed in the guilds before being adopted by the juridical authorities. The 1474 statute was intended to shore up and improve Venice's position in the industrial sector, as a response to the problems that were starting to beset their commercial empire at the end of the fifteenth century. This was driven by a logic developed not by the legislators but by those who would gain from a formal ownership regime in knowledge. However, as the centre of economic development in Europe moved towards London, the growing demands for the protection of intellectual property moved with it. Thus, despite making a crucial innovation with their treatment of intellectual property, the Venetians were not to develop an institution as legally robust as that which emerged in London. As used in British law, the idea of intellectual property was very possibly drawn from knowledge of prior Venetian practice. The myth of Venetian political stability and constitutional excellence, although a product of the History of Technology, Volume Twenty-four, 2002

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city's own propaganda, was by the early sixteenth century well established. Linked with the perceived longevity and freedom from domestic upheavals, Venetian modes of governance were well respected by the political classes of Italy and further afield.73 Certainly, in the early seventeenth century, the Venetian authorities were well regarded in their practices of governance by the political classes in Britain.74 Therefore, any legislative innovation characterized as Venetian would have received a sympathetic hearing and would have been less likely to be dismissed without careful consideration. However, as importantly, the idea of intellectual property, whatever the legal exemplars drawn from Venetian practice, also reflected a much longer development of the notion of the ownership (and value) of knowledge and information. The putative idea of intellectual property was already well established by the time legal innovations started to focus on the exact codification of the social mores of innovation and creativity. We have seen that the history of intellectual property is the combination of developments in three specific social areas: the technological, the legal/political and the philosophical (as regards the conceptualization of the individual knowledge producer). 75 And it is only in the history of modern Western capitalism, and its expansion through globalization, that the conjunction of all three elements has produced the specific type of intellectual property laws that have been consolidated by the TRIPs agreement at the World Trade Organization. While it is important to recognize the profound influence of the legal history of intellectual property on the current global settlement, we must also locate this history in the longer development of extra-legal ideas relating to the possibility of controlling and 'owning' information and knowledge. Notes and References 1. I deal with the background to, and details of, the Venetian Statute at some length in C. May, 'The Venetian Moment: New Technologies, Legal Innovation and the Institutional Origins of Intellectual Property', Prometheus, 2002, 20 (2) (June): 159-79. In this article I draw on a global history of intellectual property that I am developing with Professor Susan Sell. She has helped develop some of the ideas underlying this article (for which I am grateful) and our overall perspective on the history of intellectual property can be found in S. Sell and C. May, 'Moments in Law: Contestation and Settlement in the History of Intellectual Property', Review ofInternational Political Economy, 2001, 8 (3) (Autumn): 467-500.1 also thank the editors of this issue of History of Technology for some very helpful comments and advice regarding the final shape of the argument presented here. 2. The copying of music facilitated by MP3 and related technologies, is merely a recent example of a law being ignored when it does not seem to reflect the mores of a particular set of users. What is regarded as legitimate use by copyright holders and by copyright users is diametrically opposed. The social norms that have for some time underpinned copyright in recorded music have been violated on one side by the perception of profiteering by multinational music companies, and on the other by a denial of the legality of using technology in the manner for which the manufacturers intended, see C. May, A Global Political Economy of Intellectual Property Rights (London, 2000), 138-44. 3. May, op.tit,22-8. 4. H.C. Streibich, 'The Moral Right of Ownership to Intellectual Property: Part 1: From the Beginning to the Age of Printing', Memphis State University Law Review, 1975, 6: 1-35. 5. M.C. Suchman, 'Invention and Ritual: Notes on the Interrelation of Magic and Intellectual Property in Preliterate Societies', Columbia Law Review, 1989, 89 (5) (June): 1264-94. History of Technology, Volume Twenty-four, 2002

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6. See for instance W.R Alford, To Steal a Book is an Elegant Offence. Intellectual Property Law in Chinese Civilisation (Stanford, 1995); V. Hazan, 'The origins of copyright law in ancient Jewish law', Bulletin of the Copyright Society of the USA, 1970,18: 23-8. While the notion of awarding monopolies sanctioned by the state was a key part of Chinese Imperial economic policy during and after the Han dynasty, unlike the European experience this did not lay the grounds for patent statutes; see B. Barron, 'Chinese Patent Legislation in Cultural and Historical Perspective', Intellectual Property Journal 1991, 6 (September): 313-39, at 321. Both Alford (1995) and R. Burrell, 'A Case Study in Cultural Imperialism: The Imposition of Copyright on China by the West', in L. Bendy and S.M. Maniatis (eds), Intellectual Property and Ethics (Perspectives on Intellectual Property Series: 4) (London, 1998, 195-224), suggest that China's problematic relations with other members of the World Trade Organization, and most significantly the USA, over the protection of intellectual property can only be understood in relation to this very different history of the possibility of property in knowledge. Thus prevailing teleological views of (Western) intellectual property embedded within the successive international agreements on intellectual property have been problematized by a different Asian history which has not produced a justified system of property in knowledge. 7. May (2000), 11-14, and passim. 8. G. Ruston, 'On the Origin of Trademarks', The Trade-Mark Reporter, 1995, 45: 127-44, at 127. 9. Ruston, op. cit., 136ff. 10. I.M. Azmi, S.M. Maniatis and B. Sodipo, 'Distinctive Signs and Early Markets: Europe, Africa and Islam', in: A. Firth (ed), The Prehistory and Development of Intellectual Property System (Perspectives on Intellectual Property Series: 1) (London, 1977), 123-58, at 133. 11. S.C. Masterson,'Copyright: History and Development', California Law Review, 1940, 28 (5) (July): 620-32. 12. D.L. Blank, 'Socrates Versus Sophists on Payment for Teaching', Classical Antiquity, 1985, 4 (1) (April): 1-49, at 18-19. 13. Blank, op. cit., 9. 14. B. Genteli, Poetry and Its Public in Ancient Greece. From Homer to the Fifth Centur (Baltimore, 1988), 161; L. Woodbury, 'Pindar and the Mercenary Muse: ISTHM. 2.1-13', Transactions and Proceedings of the American Philological Association, 1968, 99: 527-42, at 536 15. A. Carson, Economy of the Unlost (Princeton, 1999), 16-17. 16. Genteli 162. 17. E.W. Ploman and L.C. Hamilton, Copyright. Intellectual property in the information age (London, 1980), 5. 18. M. Vukmir, 'The Roots of Anglo-American Intellectual Property Law in Roman Law', IDEA -The Journal of Law and Technology, 1992, 32 (2): 123-54, at 129. 19. Genteli 165. 20. S. Gzella, 'Problem of the Fee in Greek Choral Lyric', EOS, 1971, 59: 189-202, at 197. 21. Woodbury 536. 22. I. Morris, 'Gift and Commodity in Archaic Greece', Man, 1986, 21: 1-17. 23. S.P. Ladas, Patents, Trademarks and Related Rights. National and International Protecti (Cambridge, Mass.,1975) (three vols), vol. 1, 4 [footnotes deleted]. 24. Azmi, Maniatis and Sodipo 134. 25. Ruston 133. 26. Vukmir 130. 27. Masterson 622. 28. Ploman and Hamilton 7. 29. Vukmir 133. 30. Vukmir 134-5. 31. Quoted in F.D. Prager, 'The Early Growth and Influence of Intellectual Property', Journal of the Patent Office Society, 1952, 34 (2): 106-40, at 115. 32. Vukmir 130. 33. J. Harries, Law and Empire in Late Antiquity (Cambridge: 1999), 80. 34. See the sources cited in Ploman and Hamilton 8, and L. Stearns, 'Copy Wrong: Plagiarism, Process, Property and the Law', California Law Review, 1992, 80 (2): 513-53, at footnote 118. 35. Stearns 535. History of Technology, Volume Twenty-four, 2002

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36. B. Scott, 'Copyright in a Frictionless World: Toward a Rhetoric of Responsibility', First Monday, 2001, 6 (9) (September), available at: http://firstmonday.org/issues/issues6_9/ scott/index.html (30 September 2001), 2, footnotes 9 and 10. 37. Masterson 624. 38. Masterson 624-5. 39. RO. Long, 'Invention, Authorship, "Intellectual Property" and the Origin of Patents: Notes toward a Conceptual History', Technology and Culture, 1991, 32 (4): 846-84, at 864. 40. Quoted in B.G. Paster, 'Trademarks -Their Early History', The Trademark Reporter, 1969, 59: 551-72, at 560. 41. S. Williston, 'The History of the Law of Business Corporations before 1800', in: Select Essays in Anglo-American Legal History (Cambridge, 1909), 195-235, at 199. 42. M. McClure, 'Trademarks and Unfair Competition: A critical history of legal thought', The Trademark Reporter, 1979, 69: 305-56, at 310-11 [footnote deleted]. 43. Quoted in Prager 126. 44. Quoted in Prager 127. 45. E.S. Rogers, 'Some Historical Matter Concerning Trademarks', University of Michigan Law Review, 1910, 9: 29-43, at 33. 46. Long 883. Jerome Ravetz suggests, in passing, that the genesis of the individual as someone who could claim priority in innovation can be found in the disputes over mathematical formulae in the sixteenth century. Although no formal intellectual property system emerged for mathematical work, Ravetz suggests the practices of mathematicians at this time reveal a developed sense of ownership over ideas, see J.R. Ravetz, Scientific Knowledge and its Social Problems (Harmondsworth, 1973), 248. 47. P.A. David, 'Intellectual Property Institutions and the Panda's Thumb: Patents, Copyrights, and Trade Secrets in Economic Theory and History', in M.B. Wallerstein, M.E. Mogee and R.A. Schoen (eds), Global Dimensions of Intellectual Property Rights in Science and Technology (Washington DC, 1993), 19-61, at 46. 48. P.J. Federico, 'Origin and Early History of Patents', Journal of the Patent Office Society, 1929, 11:292-305, at 293. 49. F.D. Prager, 'A History of Intellectual Property from 1545 to 1787', Journal of the Patent Office Society, 1944, 26 (11) (November): 711-60, at 720ff. 50. P.A. David, 'The Evolution of Intellectual Property Institutions', in: A. Aganbegyan, O. Bogomolov and M. Kaiser (eds), Economics in a Changing World (Basingstoke, 1994), 126-49, at 134. 51. Prager 123. 52. Prager 125. 53. Long 875. 54. Long 881. 55. B.W. Bugbee, Genesis of American Patent and Copyright Law (Washington DC, 1967), 17. 56. M. Popplow, 'Protection and Promotion: Privileges for Inventions and Books of Machines in the Early Modern Period', History of Technology, 1998, 20: 103-24, at 107. 57. Quoted in David 46. 58. Bugbee 18. 59. Bugbee 19. 60. M. Thomas, 'Manuscripts', in: L. Febvre and H-J. Martin, The Coming of the Book. The Impact of Printing 1450-1800 (London, 1976), 15-28, at 23. 61. R. Hirsch, Printing, Selling and Reading 1450-1550 (Wiesbaden, 1967), 8. 62. A.J.K. Robinson, 'The Evolution of Copyright, 1476-1776', The Cambrian Law Review, 1991, 22: 55-77, at 5; see May 169-74, for the impact on publishing in Venice of the emergence of early copyrights. 63. May 170. 64. Thomas 27. 65. Prager 134. 66. E.L. Eisenstein, The Printing Press as an Agent of Change (Cambridge, 1980) combined paperback vol., 120-21 [footnoted deleted]. 67. May 169-74, and passim. 68. M. Woodmansee, 'The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the Author', Eighteenth Century Studies, 1984, 17: 425-48. History of Technology, Volume Twenty-four, 2002

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69. A. Macfarlane, The Origins of English Individualism. The Family, Property and Socia Transition (Oxford, 1978). 70. J. Burckhardt, The Civilisation of the Renaissance in Italy (Oxford, 1944 [I860]), 81-103. 71. S. Lukes, Individualism (Oxford, 1973), 47. 72. G. Mandich, 'Venetian Patents (1450-1550)' Journal of the Patent Office Society, 1948, 30 (3): 166-224, at 206-7, and more generally May. 73. R. Finlay, Politics in Renaissance Venice (New Brunswick, 1980), 27-37. 74. Z.S. Fink, 'Venice and English Political Thought in the Seventeenth Century', Modern Philology, 1940, 38 (November): 155-72. 75. Sell and May.

History of Technology, Volume Twenty-four, 2002

I n v e n t i o n s t h e

P r i v i l e g e s

E i g h t e e n t h

N o r m s A

a n d

a n d

a n d

C e n t u r y :

P r a c t i c e s ,

C o m p a r i s o n F r a n c e

i n

b e t w e e n P i e d m o n t

LUISA DOLZA AND LILIANE HILAIRE-PEREZ*

INTRODUCTION This paper is about privileges in eighteenth-century France and Piedmont, with some references to English patents. Our perspective is comparative; we aim to stress the similarities and the differences between the juridical systems for promoting invention in modern Europe. 1 We also would like to show that each system was shaped by the circulation and appropriation of foreign models; this will lead us to develop the idea of malleability of legal forms. All monopolies for invention, whatever their differences and transformations, were intended to find a solution to the 'knowledge dilemma' as economists have identified it: a tension between the incitation to produce knowledge and the promotion of knowledge in the whole society.2 On the one hand, inventive activities can be costly and investing may be risky as innovation is always an uncertain process; moreover, knowledge is a good that is hard to control, it can be easily copied by a great number of agents and the benefit for the producers can be nil. Such externalities reduce the private incentives to invent. On the other hand, producing knowledge is a cumulative activity based upon its wide dissemination in society. 'Open knowledge' economies are the most liable to be inventive.3 According to Dominique Foray, 'maximum efficiency in its use implies that there is no restriction to access and that the price of use is equal to zero'.4 * We are grateful to Christine MacLeod, Corine Maitte and Robert Carvais for reading earlier drafts of this paper as well as for the helpful comments also made by participants at the Franco-American conference on Intellectual Property, organized by Bronwyn Hall and Jacques Mairesse at Berkeley University, October 2001. None, of course, are implicated in any remaining shortcoming of the paper. History of Technology, Volume Twenty-four, 2002

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Inventions and Privileges in the Eighteenth Century

Privileges for invention were one of the answers to this dilemma. According to the first codification in Venice, in 1474, inventors and importers of new techniques were granted a ten-year exclusive right of exploitation, out of guilds' controls, if the invention was deemed useful by the municipality and if it was actually put in use.5 The Venetian solution was combining the incentives to invent and the openness of knowledge in the name of the public good. Exclusivity brought benefits to the inventor and at the same time, publicity was enhanced through public expertise, private exploitation and economic transactions.6 As is well known, monopolies for invention spread out in Europe thanks to the migrations of Italian artisans in the sixteenth century and to the progress of openness helped by humanism, Baconian principles and the growing interests of princes in economic ventures.7 But this legal form was never homogeneous. It varied according to regions and to periods. Exclusivity was often reshaped: in France and in Piedmont, monopolies were free but in England they were sold by government and were expensive or rather, 'cost was not at all negligible'; on the Continent, their grant depended on examinations of utility, and local novelty, but this was not so in England.8 These reshapings were materializing different relationships between inventors and public authorities and more generally, between knowledge and power. Moreover, inventive entrepreneurs could negotiate some clauses like the term and the extension of the monopoly. In the eighteenth century, in France and in Piedmont, the state was holding back on the possibility of adapting privileges in order to make a compromise between its interests and the inventors' ones.9 The privileges were the result of political choices, of state strategies of intervention and of the negotiations between officials and economic actors. Furthermore, as in the past and in several other countries, privileged manufactures were created with the direct participation of high court dignitaries, creating both monopolistic situations and, sometimes, gains in production. Beyond the norm (exclusivity), expectations, uses and practices were most important.10 Furthermore, since the Renaissance, monopolies have coexisted with other protections. European states, townships and provinces granted rewards and a whole range of privileges without monopolies, allowing fiscal exemptions, derogations from guilds' controls and titles like royal manufactures which offered both material advantages and reputation in the marketplace.11 In eighteenth-century France, these solutions were frequently preferred to exclusivity which was rather considered as a threat to the openness of knowledge.12 In France and in Piedmont, where governments tried to reform and modernize industrial activities, this diversity of safeguards gave way to complex institutional constructions, combining resources and involving different scales (central and local administrations): and the two countries, at different levels, became laboratories of public management of innovation.13 In continental Europe, the logic was the same for exclusive rights and the other types of protection: they were rewards. They expressed the price History of Technology, Volume Twenty-four, 2002

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of the service the inventor offered to the state and to the public good. This relationship based upon service and contract, inherited from Venice, reached its climax in France and in Piedmont during the Enlightenment. As a consequence, privileges (exclusive or not), financial and honorific grants were all bestowed only after a close examination of the invention.14 The state had to evaluate the public benefits of the inventions before committing its protection and its credit, both material and symbolical. This was a major legitimization for inventions; it enhanced their official reputation in the marketplace. In this article, we shall study both the complexity and instability of the systems for promoting innovation and their practical effects by comparing France and Piedmont in the textile industries. Textile was an economic sector which dominated international trade and fostered numerous inventions due to the significance and dynamism of the clothing economy in the eighteenth century.15 Silk and wool in Piedmont: an introduction From the reconstitution of the state following the peace of CateauCambresis of 1559 until the late 1700s, Piedmont, as other countries elsewhere in Europe, implemented a variety of strategies to foster the local industries: control through guilds, protection of the local industry, incentives for foreign skilled workers to settle in Piedmont, trips abroad, privileges, and public support.16 Thanks to these policies and the excellent natural quality of Piedmontese silk, at the beginning of the eighteenth century, Piedmont was already able to compete with the rest of Europe for the production of spun silk and among the Italian states it ranked as the leading exporter of organzine beyond the Alps.17 As the government had done for the silk industry, but to a greater extent, it gave a continuous series of loans and privileges to the woollen industry, a delicate sector for this belligerent little state.18 However, by the end of the eighteenth century, the woollen industry was still producing a steady flow of low- and medium-grade cloth for the home market and silk was still the most important industry of the state, and its tax on importation, represented 80 per cent of the government income.19 As a matter of fact, other countries with a strong textile sector had found it profitable to sell finished fabric and buy Piedmontese raw silk. For the whole century, Piedmont had not enough political power to react to this commercial policy - it needed funds to finance its expenditure, including for expansionist purposes, which it could only raise through the trade in raw silk. All efforts, whether strong or weak depending on the ruler, proved unable to oppose this trend. Whatever domestic finances were left, they were not enough to develop a competitive and autarchic local industry, so important both for the Savoy finances and for the impending war. However, notwithstanding the fact that the contradictory policies of the government - carried out mainly through the incentive of privilege- failed in promoting the woollen industry, it elicited some parallel advantage. History of Technology, Volume Twenty-four, 2002

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Inventions and Privileges in the Eighteenth Century

The set up of a woollen strategy When Victor Amadeus II rose to power at the very end of the seventeenth century, intervention in textile manufacture started to become systematic.20 During his long reign, he fought two wars to free Piedmont from French influence, to extend its boundaries and to turn Piedmont into an effective military power. He restructured the most important institutions, extended his authority at a local level through a network of provincial intendants, radically modified the tax system, diminished the economic independence of the nobility, and fostered industrial development in order to revitalize economic life and make Piedmont free and competitive. Since his accession to power, Victor Amadeus's absolutist conception of government was already revealed by his concern for industry, which he tried to bring under complete state control. Until then, the central mechanism through which state control had been exercised, following the French example, had been the Consolato.21 The origins of the Consolato can be traced back to a commercial tribunal founded in the sixteenth century and restored in 1676. Victor Amadeus II reorganized this tribunal in 1687, giving it special powers to protect local industry, and enforcing bans on the export of raw silk and on the emigration of skilled workers. The main tasks of the Consolato, controlled by ducal officials, were to find new ways and rules to help trade and provide fair judgements concerning commercial disputes.22 It was required to inspect manufacturing sites and products and to uphold standards of quality, to draw up proposals for the advancement of trade, and to enforce guild statutes.23 Guilds were considered too weak and unassertive, therefore in 1687 Victor Amadeus II extended governmental control to them too.24 The Consolato became active as soon as it was reorganized, and new and stricter rules were implemented for the working and dyeing of silk. Its members, mainly bankers and shopkeepers, were still convinced that the backwardness of the other industries was due to a certain confusion ruling in the artisan's world. In order to improve the situation, they assumed that a regulation as strict as the one controlling silk manufacture and trade might be a sufficient enhancement; hence the first action of the Consolato concerning for example dyeing was to 'select', in 1687, a limited number of dyers to be masters.25 After the reforms mentioned above, which constituted the starting point of his policy, Victor Amadeus II devoted his entire attention to the conflict with his more important commercial partner and supplier, France (1690-6). At the time, uniforms for the army were only partially supplied by a woollen industry close to Biella.26 Paradoxically, the rest of the demand, with serious difficulties, had to be satisfied by imports from France. The end of the conflict was a success for Piedmont, which obtained several advantages, bought at a considerable cost. Widespread devastation, a battered economy and exhausted finances were the result of a victory that only peace could now amend. The war had revealed serious weaknesses in the administrative, industrial and fiscal structure of the state, calling for reorganization and reforms that Victor Amadeus II proceeded to introduce. History of Technology, Volume Twenty-four, 2002

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On the French model, he created the position of 'General Inspector' of the woollen industry, an officer who was supposed to report on the state of the industry, and to suggest new ways of advancing it. Furthermore, he helped entrepreneurs to set up their factories, and elicit several workmen from Holland and Flanders (after his military campaigns) to come to Turin.27 Then, he spent a vast amount of money to set up the poorhouse Ospedale di Caritd of Turin, a place where, as in the Albergo di Virtu, the workers were mainly vagrants.28 The aim of the poorhouse was to teach vagrants a skill and to use their work at a lower price. In 1713, more than 20 per cent of the workers were engaged in woollen manufacturing, including dyeing. The director of the poorhouse, for more than 17 years, was from Flanders, and when he retired asked for and obtained governmental aid to set up a woollen blankets factory.29 The recourse to a foreign workforce was a recurring feature of the duke's policy. The cornerstone of the policy was the edict of 28 April 1701. By this edict, Victor Amadeus invited foreign merchants and 'artists' (craftsmen) to come to Piedmont to provide masters for the local workers in order to form a local workforce. The invitation was addressed to workers in both the silk and wool industries, but, as far as we know, and with just a few exceptions, it was accepted mainly by French silk workers.30 To give an idea of the nature of the flow of migrants into Turin, 26 per cent of 142 employees in the workhouse Albergo di Virtu were from France.31 In 1702, in the list of registered employees in the silk industry, more than one third were French.32 In addition, several entrepreneurs, most of them from France and Geneva, accepted the duke's offer and started a tradition that was to be active until the Italian unification. Thereafter, a steady flow of foreigners went to live in Piedmont. Between 1702 and 1723, for example, 84 foreigners were authorized to establish activities connected with the textile industry.33 The influence of this influx was considered beneficial for the production of silk, the quantity of which had doubled by 1780. The woollen industry benefited from the stimulus of foreign workers only after 1720, when various European entrepreneurs and workmen began to settle in Piedmont. One reason for this delay compared to the silk industry was the importance of the diplomatic relationship with England.34 By the 1720s English woollens were being exported to Piedmont in considerable volume and had penetrated a market hitherto closed to them, creating a serious problem for the Savoyard government as it sought to develop its own textile industry. But this was the price that Victor Amadeus had to pay for British support during the peace negotiations: peace that granted him more territories and the crown; the new Kingdom of Sardinia was thus established. From Utrecht to Victor Amadeus 9s abdication: the struggle In 1717 citizens were spurred by the Provencal Jesuit Guillarme to contribute towards an endowment for the rebuilding of the poorhouse Ospedale della Caritd, which was closed during the war.35 Its main activity was History of Technology, Volume Twenty-four, 2002

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again the production, including both weaving and dyeing, of woollen cloth, especially for uniforms. Artisans were hired to teach the poor useful trades. The government fed them and sold their labour at bargain rates to the textile entrepreneurs who ran the state factories. Between 1717 and 1720 this system was extended to the entire state, except for Sardinia. In the same period of time, from 1732 outside the capital, state-supported woollen factories were established and given protection, helped also by a military order to oust imported cloth from the upper reaches of the market. Yet again in the list of the entrepreneurs of the subsidized and privileged industries we can find various foreign names: in 1725 the French Delauney got several privileges, in the same year Germain of Poitier gave birth to a subsidized firm for the production of combs.36 In 1726 Marmie of Montauban assured the government of being able to produce the right scissors for shearing woollen cloth and till the very end of the century we can enlist names of foreign subsidized small-scale industries connected with wool one.37 The government, now in a stronger position, wanted to develop internal resources to supply its market. In 1722 the Savoyard authorities banned the export of raw silk from their territories, claiming with some justification that a shortage of cocoons in that year had left insufficient raw silk for their own spinners.38 This ban was mainly imposed to protect the Savoyard industries in response to the growing English silk-spinning industry. The British government protested, threatening an embargo, but the ban was upheld, with serious consequences for the new spinning factories in England.39 The silk embargo became the first shot fired in a trade war that rapidly escalated. Victor Amadeus was persuaded by an influential group in the government to uphold his protectionist policy. Of paramount importance was the fact that those men in government holding key positions like Ormea, and later Fontana and Salmour, needed the protectionist stance of the king to be maintained in order to support their new-born strong personal interests in the woollen industry. They comprehended the potential of a local woollen industry fostered by the state and, assuring the king that the state could manage without foreigners, persuaded him to pursue his policy.40 In 1725 Victor Amadeus embarked on his tariff war with France and England, ordering all merchants within the state to sell a fixed quantity of locally made cloth, even if this was often more expensive and of poorer quality than the imported variety.41 Customs were increased to 10 per cent on every kind of cloth except those that were not produced in sufficient quantity or were of an unacceptable quality.42 A year later these customs were extended to other types of cloth, particularly high-quality English woollens.43 The French government retaliated by halting the export of raw wool to Piedmont in order to create difficulties for the cloth industry there. The English took revenge by reducing the demand for Piedmontese spun silk. However, they could not carry out their intentions because of the interests in the silk-weaving trade of those who used powerful lobbying.44 In History of Technology, Volume Twenty-four, 2002

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addition, the export of the tools necessary to weave wool was banned, as was emigration without a licence of workers specializing in wool, for which the penalty was a fine and bodily punishment. 45 As has been said, a constructive policy toward the woollen industry began during the 1720s with the prolonged attempt to break free from English influence. Hence, the desire to have a nationally independent woollen manufacture brought with it a new strength: a focus on the dyeing industry. From 1718 onwards various foreign dyers began to settle in Piedmont. When we reach this century the documentary evidence is more abundant, and one can form more definite opinions about the presence and influence of foreigners. As a first manoeuvre, in order to encourage foreign as well as local artisans, houses in Turin were rented free to dyers. Hence, within a few years, several economic advantages were granted from the government to foreign dyers who decided to settle in Turin, which testifies to the commitment of the government to the development of the industry. In 1720 the Dutchman Giovanni Paul, who declared he had travelled extensively and had been in Florence for many years, obtained a substantial loan of 25,000 lire, a workshop rent free and the equipment for weaving and dyeing in his workshop.46 In 1721 a French dyer, Giovanni Guerit from Kantonge in Provence, obtained a house for a period of ten years for dyeing fabrics.47 The following year a French wool dyer named Rounneilau set up his workshop at Borgo Po, promising he would not damage the silk dyers' workshop even though they were using the same water.48 The policy of the Piedmontese government towards foreign artisans can be demonstrated by the case of the dyer Francesco Suarz.49 In 1724 the dyer was called by Fontana (one of the ministers involved in the woollen industry) and by Biaggio Nigri (the owner of a woollen industry in Turin) to come to Piedmont from Olmutz, Moldavia, to dye wool and to teach locals how to dye it.50 Unfortunately, it is not known how the Piedmontese came to know this dyer nor why he, coming from a distant country with few and sporadic contacts with Piedmont, had been preferred to anyone else. (The only reason seems to be an annual 'fiera' - trade fair - that was held there.) Nevertheless the artillery corps built a house for him which, by his expressed desire, was not built in the dyers' village, Borgo Po. On the contrary, it was erected in the opposite part of the town, outside the city wall, using a canal derived from the other river: the Dora. However, the dyer was provided with a warehouse in the dyers' village in case the water of the canal proved to be cloudy. A house was built for Suarz with a dye shop annexed to it and the government loaned a considerable amount of money to furnish it with the best dye drugs, tin and copper cauldrons, tins for pastel dye and others tools.51 In addition, he asked for the privilege of being the exclusive dyer of army fabrics (particularly red, green and blue). 52 He received everything he requested: the privilege of dyeing uniforms made in Turin banning anyone from dyeing in the same colours, except in Biella and Ormea, and an annual salary that lasted until 1738.53 In return, he was to teach his art to local dyers. The public demonstrations were conducted by Suarz in the poorhouse Ospedale di Carita and then later History of Technology, Volume Twenty-four, 2002

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in his dye shop. The demonstrations were on the art of dyeing in red, as the focus of attention was on the colour of the Piedmontese uniform at that time. It is interesting to note that these lessons were recorded. It may seem strange that a dyer allowed his skills and secrets to be remembered, but Suarz was getting old and he had already lost his privilege of being the only dyer in red in Turin. In the Turinese archives there is a notebook where each step of the experiments - where, when and who was attending - is recorded. 54 This precious document reveals the process used by Suarz for dyeing in red and records that all the wool dyers from Borgo Po, as well as dyers from the surrounding areas, came to attend the lessons.55 In 1735, following this new effort to foster the dyeing industry, and considering that one of the main problems was the cost of the raw material imported from abroad, merchants and wool manufacturers as well as dyers resolved to establish a 'ceiling price', the maximum price, based on the price used in Lyon, dyers could demand for dyed fabrics. The Consolato, with the help of Francesco Suarz, the wool dyer mentioned earlier, established and then published a list of the cost of dyeing in every colour according to the price of the dyes. Generally the price of dyed fabrics depended on the price of the dyes, a factor that weighed heavily on the final price.56 The policy of the 'fair price' or of the 'ceiling' was pursued throughout the century. Some years later, as in the case of Jean Oilier, the master was not only to share his knowledge, but also to maintain a 'juste prix' for his monopoly: ... Qu'il prendra chez lui dans le terme de deux mois deux apprentifs intelligent^ dont on lui laisse le choix ... qu'il sera oblige de les garder aussi lontemps qu'il sera necessaire ... qu'il sera par la meme oblige de leur comminiquer de bouche, par ecrit et par pratique tous ses secrets et recettes ... qu'il donnera par ecrit au Conseil de commerce tous ses secrets pour faire le beau noir sans etre sujet a changer et avec toute la perfection qu'il est capable de donner, expliquant methodiquement le procede exact qu'il faut suivre pour le melange et choix des drogues afin d'arriver a ce procede exact ... bien entendu que le Conseil fera un usage discret des susdits secrets et recettes. Sa Majeste exige flnalement qu'il travaille a un juste prix pour le public et qu'en sa faveur il modere particulierement celui de sa teinture noire, et le tout avec les precautions qui lui seront indiquees par le Royal Conseil de commerce.57 The Royal Council of Commerce and the fair prices' In the last reported phrase, appears one of the most important economic actors of the century: the Consiglio di Commercio (Royal Council of Commerce), created in 1729, one year before the abdication of Victor Amadeus.58 Inspired by an analogous institution created in France to supervise commercial affairs on land and sea under the direct presidency of the sovereign, the Consiglio assumed the consultative and control History of Technology, Volume Twenty-four, 2002

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functions previously carried out by the Consolato, which maintained the duties of a commercial tribunal. From then, till the first half of the nineteenth century, pursuing the general objectives of the monarchy, it became the centre of regulation of the country's economic life. Modelled on the French system, it covered the main important economic actors: guilds, manufacture, foreign trade and commercial companies.59 It stimulated, projected, studied practical solutions of economic problems, corrected the abuses, preserved the quality standard, controlled the price level, mediated in conflicts of an economic nature but above all, its main weapon was the concession, confirmation or abrogation of the privilege. Experiments were made in different and various forms, but their common denominator was the systematic and pragmatic recourse to the method of economic privilege as an instrument for dynamically coordinating the actions of economic actors. The procedure to obtain a legal recognition of conditions of privilege consisted in the presentation of a document upon which the council was to express an opinion, regarding its interest for the economy of the country. In every case, the final decision was to be determined by the sovereign himself. The council had to judge that the function attributed to economic privilege did not turn into a 'monopoly iniquitous, unfair to the public'.60 The privilege of displaying the royal signs, fiscal incentives, exemption from customs duties and taxes were the most common privileges, as the monopoly on production conceded for a set time, protection that in the case of a technical innovation, assumed implicitly the nature of a patent.61 When the monopoly referred to a new product, the council fixed a maximum price that could be charged, or a tariff. Victor Amadeus II abdicated in favour of his son Charles Emmanuel III the year following the creation of the Consiglio, in 1730. Emphasizing his father's industrial policies, he was even more protectionist in matters concerning the woollen industry. The main reason for this was the recognized importance of the woollen industry for the Piedmontese economy (during his reign the army doubled in size compared to his father's era), and the role played until 1740 by one of his more powerful advisers, the Marquis d'Ormea. Under the reign of Victor Amadeus II he had held the position of Foreign Minister; in 1730 Charles Emmanuel III further awarded him the position of Interior Minister. In 1740 he reached the peak of his career and influence: in addition to being Head of the Financial Office, he gained the position of Gran Cancelliere, the first and the only such post in Savoyard history, controlling the Supreme Justice Administration, as well as the post of Foreign Secretary (which he then delegated) and Interior Secretary.62 By 1740 the Marquis d'Ormea was the rich owner of a woollen factory and was almost supplanting the role of Charles Emmanuel III. In 1723 Marquis Ormea, at that time Minister of Finance, obtained patents to set up a woollen factory in his own birthplace, Ormea, a mountain village close to Cuneo.63 To direct it, he called upon an Englishman, John Conward from Frome in Somerset, who brought with him specialized workers, including a dyer. This enterprise, for a long time History of Technology, Volume Twenty-four, 2002

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the largest woollen textile factory in the state of Savoy for the production of finished and dyed cloths, benefited from its owner's high political position; he obtained several privileges throughout the eighteenth century. Among these was permission to own a factory although he was a member of the aristocracy and of the government.64 As a matter of fact, the industrial policy of the king was strongly influenced, till the Marquis' death in 1745, by the economic interest of his adviser. With a drastic manoeuvre in 1730, it was prohibited to sell foreign fabrics within the national borders and merchants were ordered to hand over some of their foreign fabrics to the Consolato.65 Naturally, foreign merchants complained, and local merchants were also dissatisfied with this arrangement, because local production was not at all competitive compared with foreign production. Foreign complaints did not stop the woollen protectionist policy and the associated attempt to create an independent industry under state control. However, the reality was that the woollen industry was not yet ready to supply the internal market. In the reports it is stated that Biella was not selling its production to Piedmont, and the other industries were not producing enough cloth; merchants complained about their empty shops and storehouses. A few years later, after an investigation, the Consiglio di Commercio was forced to admit the rights of the merchants and in 1735, to allow the market to survive, they accepted the import of some plain, 'white' cloth.66 Then, in 1732, a cumbersome decision concerning the woollen industry was made.67 As a result of the series of reports and enquiries, the Consolato and the Council of Commerce decreed that all woollen manufactures must leave Turin and be decentralized throughout the land, with the sole exception of the poorhouses.68 The reasons underlying this change were several. First, they wanted to leave only the most important textile industry, the silk one, in Turin, in order to limit competition for labour between the silk and the woollen industries, and to reduce the number of workers in the town for reasons of control and security. Another factor was the desire to keep the industry decentralized, partly to spread employment to every region of the state and partly to serve the needs of the army. Military uniforms were made from local cloth, and by keeping the industry dispersed the government hoped to assure the supply of this strategic commodity even if an invader occupied parts of the state. Then, last but not least, the factory of the Marquis d'Ormea was 100 km from Turin. It was undoubtedly in his own interest to have the woollen industry decentralized, as an industry in Turin would have been naturally advantaged. All the governmental reports on the state of the woollen industry written at the end of the century emphasized how this decree had highly negative consequences on the woollen industry. As it required the immediate halt of all manufacturing activity within the city's boundaries, except for the poorhouses, and the transfer of all plants to the province, the woollen industry lost its tight links with the city. The 1733 decree undermined the financial efforts employed since the end of the sixteenth century, and jeopardized the whole set of activities which were dependent History of Technology, Volume Twenty-four, 2002

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on the woollen industry. In the course of the same year, convinced that the implementation of such measures would reap as beneficial rewards as they had done in the silk industry, the government enforced strict regulations on woollen manufacture, which had never previously been the object of such legislation. The second half of the century: privileges, poorhouses and monopoly Ormea died in 1745, and a few years later an extensive enquiry was carried out to discover the true condition of the industry within the country. In 1756, John Conward, the ex-director of the Ormea factory, now General Inspector, presented the king the result of his investigation.69 He highlighted unfavourable conditions and apportioned part of the blame to the absence of local production of raw materials. On a practical level, manufacture was almost completely dependent upon foreign imports. Despite some weak attempts to change the situation, the production and supply of raw materials represented one of the major problems of the woollen industry, not only in Piedmont, for a long time, right through to the first half of the nineteenth century.70 A strong policy of defence of agriculture was banning the already weak attempts to set up breeding.71 Also, despite the presence of foreign entrepreneurs and the government effort in Piedmont, Conward discovered that there were few substantial investments. The inspector surmised that the woollen industry in Piedmont at that time was underdeveloped and lacking in resources, where Biella was the only outstanding centre with 63 workshops and several hundred looms. An understanding of the social and economic changes that were taking place in the country and in the towns in the second half of the eighteenth century is essential to understand the government policy toward mendicity, and the poor's capacity and possibility of working also in the manufacture of wool. Notwithstanding the problems of the woollen industry, it was never considered possible to reopen the capital to woollen manufactures, and to seriously reconsider the policy towards the poorhouses. In the year of its foundation, 1755, the Ritiro di San Giovanni di Dio, the workhouse for girls founded and directed by Rosa Govona, was placed under the supervision of the Royal Council of Commerce.72 For the first time in Piedmont, an institution claimed to be able to sustain itself simply with the inmates' work 'labores manuum tuarum manducabis'. 73 Since its inception it was favoured with regular work from government commissions and, above all, with significant privileges assigned to its manufacturing activities. Even if it was often at the centre of a great deal of controversy and hostility, from a commercial and moral point of view it was a complete failure, the government never stopping helping it, secretly financially, and publicly with support and privileges. In 1779, after years of weak attempts to change the situation and several wars, the minister Donaudi wrote that the policy followed hitherto by the Piedmontese government - of indiscriminate opening of new plants in the province and at the poorhouses - had kept their size at a sub-optimal level, History of Technology, Volume Twenty-four, 2002

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and that the favourable treatment accorded to purely speculative ventures, or in regions without a local market, had discouraged efforts to improve the quality of manufacturing.74 Moreover, according to Donaudi, the raw material became more expensive - even if its import was duty-free - due to increased international demand, worsening the situation for local manufacturers who depended almost completely on foreign wool suppliers.75 A final indicator of the weakness of the productive system was the insufficient self-financing capacity, which forced most merchants to deal with foreign money. In the following years, several reports, written by members of the government, the Royal Council, economists, academicians, some of them under the influence of free market theories, arrived at the same remarks and comments and pointed out the same difficulties of the national manufacturing. The powerful criticisms made on various occasions were not influential enough to convince the rulers of the old regime of the effectiveness of the idea that industry should not have to suffer restrictions on liberties. However, if the system was not capable, for different reasons, of starting up an effective process of industrialization, it left as an inheritance a solid fabric of artisans and professional skills. THE USES OF EXCLUSIVITY IN FRANCE: THE CASE OF JOHN KAY John Kay is famous for the textile inventions he brought to France: the flying shuttle, cards and a machine for making cards (for wool and then cotton). Less is known about his business in France. Kay's mobility illustrates how inventors could play upon the range of protections, even outside their countries. As he stayed a long time in France (1749-79), his example also reveals the transformations of the French system in relationship with migrations, with entrepreneurs' pressures and with governmental strategies. It helps to understand exclusivity in the light of uses and practices. John Kay and the weakness of English patents As a comb-maker for looms, Kay belonged to mechanical trades developing in tune with the growth of textile industry. He contrived different technical devices even though his 1733 patent for his flying shuttle is most famous, especially because he faced troubles with weavers fearing for their employment and with others, ready to infringe the patent and reluctant to pay the royalties especially in regions of 'kaufsystem' where small producers were independent. 76 The scattered proto-industry made it very difficult for him to enforce his right; worse, the weavers argued that the actual shuttle they used was not the patented one but an improvement.77 Kay tried to remedy this by prosecution in law courts and by applying for a parliamentary reward but without any success.78 When his patent expired in 1747 he decided to move to France. Kay's problems with his patent revealed the main feature of the English system. The procedure was based upon the inventor's individual reponsiHistory of Technology, Volume Twenty-four, 2002

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bility, on his personal assets, on his business contacts and backers, on his ability to assert his right to exclusivity and to take advantage of other available institutional resources such as private acts and rewards from Parliament or awards from advancement societies.79 As Christine MacLeod has demonstrated, since the Statute of Monopolies (1624), patents were tolerated provided they did not entail public inconvenience and that they be limited to fourteen years. They did not play any part in economic policies and the state never ordered any examination to test the utility of inventions. Inventors had to pay for their patent and the legal procedure was a mere registration, without any support from the state; it was entirely at the expense of the patentee. The state only limited speculation on patents by the Bubble Act (1720), which curbed the formation of companies for exploiting patents. In 1734, the filing of a specification was made compulsory after the granting of any patent in order to ensure smoother running of the procedures in courts. Public utility and experts' evaluation were not at stake. So, taking a patent meant investment and risk for the patentee. Transactions between the state and the inventor were mainly financial and rested on a minimal investment by the authorities. This could lead to disappointments, failures and emigrations. John Kay in France: the collective logics of privileges Kay's business in France took place from 1747 to 1779. It was a period of important changes in the legal procedure to promote innovation. Since 1699, the Paris Academie des Sciences was in charge of examining inventions for the state; in 1722, the government created the Bureau du Commerce which specialized in industrial policies and innovation with the help of scientists directly working inside this department; in 1752, a special fund for commerce and industry was instituted; in 1762, the first codification of monopolies for invention was issued; in 1777, a national prize was founded to encourage inventors. At the same time, many other institutional devices were set up: the Paris Society of Arts (1726); the Royal Agricultural Society of Brittany created by the provincial administration (1760); the Societe Libre d 'Emulation founded by the physiocratic Abbe Baudeau (1776); the official repository for inventions in Paris (1782); and engineering schools like Ponts-et-Chaussees, 1748. Ancient institutions were also involved in this mobilization for innovation through the formation of provincial boards, townships, guilds and local scientific societies.80 This provided a multiplicity of institutional networks, many financial opportunities and possibilities of experimentation. All kinds of arrangements were tried out, in government and provinces. Kay experienced this institutional experiment in three stages. JOHN KAY'S FIRST PRIVILEGE: A JURIDICAL HYBRID John Kay found a partner very quickly, and in December 1747 they were granted an exclusive privilege which was very similar to an English patent. History of Technology, Volume Twenty-four, 2002

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It was a 14-year monopoly, like a patent, and in an unusual way in France it allowed the patentees to collect royalties from weavers and to organize transactions with sub-contracted makers.81 Kay himself sent a specification to avoid infringements. This description was not aimed to teach the users or the public; Kay wanted to ensure his right in the courts. The diffusion of the new technology was expected to take place through business: Kay and his partner would teach the licensed weavers how to use the shuttle and makers would receive 'instructions'. This privilege was very similar to a patent. Nevertheless, Kay also benefited from specifically French advantages. French exclusive privileges were free. Above all, Kay's privilege provided the mediation of state inspectors of manufactures and of guilds' officials for enforcing his right. The state was mobilizing two of its networks of control on behalf of the inventor; this reduced the cost of managing the privilege and could convince Kay to stay in France. As a counterpart, Kay's privilege was conditioned by a close examination. The shuttles were tested in the royal manufacture of the Gobelins and in another one, near Paris, in Mouy. Three inspectors were committed. The proof process combined a whole range of different criteria: productivity, quality of cloth, handiness of the loom, time for learning to use it; workers were asked their opinions as users and inspectors had to evaluate the benefits for the country. Most of the time, the French procedure rather involved academicians. The legitimacy of scientific knowledge in the French monarchy was mainly related to its usefulness in evaluating techniques and in modernizing industry.82 But the academicians' evaluations were wide open to facts, to practices and to different opinions. Ascertaining utility entailed collaborations with other experts and with users; it promoted collective negotiations and confrontations of judgements as means to reduce the uncertainties proper to innovation.83 For the inventors, this system was burdensome, but the benefits were huge: these examinations were real trials, inventions were tested and improved and privileges expressed a strong official recognition which attracted investors. The support of the state was important. It became even stronger at the middle of the century as the logic of service was enhanced. During the 1750s, the French system differed more radically from the English one. John Kay also experienced this change. JOHN KAY'S PRIVILEGE RESHAPED: A FLEXIBLE RIGHT In England, Kay had faced many difficulties in exploiting his patent because he could not control users and levy royalties in a rural, scattered industry. The patent was not profitable in this context. The French government tried two sets of solutions for a better remuneration of the inventor and for an efficient spread of the shuttles. The first arrangement, in 1748, concerned the province of Languedoc, a very important region for the wool industry and an experimental district for reforming the promotion of the industry run by state inspectors and guild officials.84 The government History of Technology, Volume Twenty-four, 2002

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organized the assignment of Kay's privilege to a merchant called Vallat who was also a partner in the manufacture of Mouy. Vallat belonged to the closest circle of persons informed about Kay's inventions. He agreed to invest 16,000 pounds (660 pounds sterling) which he planned to make profitable by the weavers' royalties. In fact, he did not have to collect any royalty; the provincial administration (called provincial states) paid off the merchant. Public investment was supposed to ease innovation in a protoindustrial region. At the same time, Vallat had to bring over and pay two workers from Mouy who had been taught by John Kay how to use the shuttle. The result seemed positive as the king's representative (the 'intendant') wrote that the guild officials in Carcassonne appreciated the shuttle as well as the weavers. This institutional patchwork illustrates the main directions of the promotion of innovation during the Enlightenment: it rested on a complex administrative network, connecting national and local institutions (Bureau du Commerce, inspectors, 'intendant' and also guilds); it combined private and public funding and initiatives; it coordinated centralized and decentralized units of production; the pedagogy of innovation was becoming a main focus and it was based upon the mobility of qualified workers. But John Kay was still disappointed by the profits. A second system was tried in 1749 with more public investment. Kay was granted a new privilege, covering the rest of the realm, outside Languedoc.85 Instead of getting royalties, which seemed too hard to collect, he got an annual allowance of 2,500 pounds (100 pounds sterling). In return, he accepted the responsibility to teach the use of the loom in several French textile cities. This privilege was made out when the administration of commerce came under direction of Daniel-Charles Trudaine. Trudaine was acquainted with the encyclopedists and with liberals and reformers inside the Bureau du Commerce like Vincent de Gournay or Veron de Forbonnais. They all developed a Newtonian vision of the economy, considering that the economy was moving by itself, thanks to an invisible attraction, private interests and to the interdependence of all the trades.86 The state could be useful if it stimulated the initiatives and if it helped to keep the balance between private vices and public good. Social cohesion was their main focus. In this context, technical invention was valued as one of the best means for economic reform. It was serving a project of well-balanced economic growth. Public utility was the only criterion to grant privileges. This presided over the setting of a political technology, 'politization of technology'.87 This was the basis of the royal declaration of 24 December 1762: exclusive privileges were only granted to the deserving inventor (and their term was limited to 15 years).88 Familial transmitting and commercial business could not legitimate any such monopoly. This codification was the outcome of the spread of enlightened academism and of liberalism and encyclopedism among state elites. Although it was not mentioned in the declaration, nearly all privileges made it compulsory to teach the invention to apprentices.

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This logic also brought the administrators to prefer to grant other kinds of protection: rewards, bonuses and all sorts of privileges without exclusivity, like fiscal exemptions and honorific distinctions for the manufacture. The enlightened and liberal state in the 1750s was investing massively in the promotion of innovation. From 1740 to 1789, the Bureau of Commerce granted 5.5 million pounds to entrepreneurs and lent them 1.3 million pounds. 89 As the funds were often associated with local rewards from townships, guilds or provincial boards, the whole public investment is hard to quantify exactly but we can say that it was massive. For some inventors, this represented huge benefits, which could extend to their wives and heirs. For instance, Philippe de Lasalle, a famous silk drawer and merchant in Lyons, received 122,000 pounds during his life and part of his pension was continued on behalf of his daughter. Public funding was by no way negligible; it could have an economic impact as a remuneration for inventors. It was in this context that John Kay's cards and machine for making cards were diffused in France. AN INVENTOR UNDER CONTRACT: INNOVATION OUTSIDE EXCLUSIVITY After experiments were made under control of inspectors of manufactures and guilds' officials in woollen cities, Kay obtained a workshop in Paris, in 1752, where he had to produce shuttles and to build up models of his machine to make cards with the help of workers.90 He had to work side by side with two card makers (faiseurs de cardes), one coming from Lyon, who were themselves inventors and were paid by the state to improve their own devices. Kay's workshop was an experimental centre for mechanical engineering. But he was still unsatisfied by his grants and he left for England. The government, which did not care for inventors' rights but about the success of innovation, gave his machines to makers from Rouen, the Lemarchands, who set up in Paris.91 They were supported by John Holker, an Englishman, a wealthy manufacturer, a state inspector and a great adept of modernization, at a general level and in his own plants (cotton industry), in Rouen and Sens where he organized important technological transfers with England.92 As a public expert and a privileged manufacturer, Holker was also a wise capitalist, investing in innovation with institutional guarantees. As a matter of fact, in 1758, amongst the 380 pairs of cards sold by the Lemarchands, 100 were bought by Holker in Rouen, 82 also by him in Sens, and 72 by the inspector of manufacture of Amiens. The intricacy of private and public markets and the interplay between investors and experts were supporting the mechanization of textiles. John Kay came back in 1769 and, as he had become adept at negotiating with the authorities, he received an allowance provided that he would send machines into six provinces; he was also settled in Holker's manufacture of Sens to teach six apprentices for 12,000 pounds (500 pounds sterling). In 1776, he was still in Sens where he taught his techniques to two workers and then in Troves.93 History of Technology, Volume Twenty-four, 2002

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This public funding of innovation was a long-term characteristic of the French system and it was continued even after the Revolution, with the creation of new special funds for rewarding worthy inventors.94 John MacLeod, who reintroduced the flying shuttle in France at the end of the 1780s, worked in Sens in 1790-1 and then in the hospital of the QuinzeVingts in eastern Paris where he taught 20 apprentices and realized models for the official repository of inventions, the Hotel de Mortagne, in the same part of Paris.95 Nevertheless, in a paradoxical way, this public investment coexisted with the exclusive rights that never disappeared. On the contrary, from the 1780s, monopolies for invention were more easily granted. The duality of the French system (rewards and monopolies) was reinforced. The birth of the brevet, in 1791, was prompted by the new legitimacy of the exclusive privileges during the last decade before the Revolution. The main reasons were the growing capitalist pressures for benefiting from investments in innovation at a time when markets for novelties were expanding in a society of consumers. This new economic context, more open to profit, business and speculation, changed the relationships between inventors and the state. With Necker as the Controleur general des Finances (1776), exclusive privileges were reinstated as means to remunerate investments and to convince capitalists to support innovative firms. Private investment was officially recognized as a good means for the modernization of industry, especially in sectors requiring heavy equipment, like cotton spinning, or resting on numerous experiences as in chemicals (soda, sulphuric acid). This was a 'new deal'. Liberals like Necker considered that capitalists needed institutional resources to risk their assets in market competition. Exclusive privileges acquired a new legitimacy. Monopolies and competition were no longer incompatible. If the ethic of public service did not fade away, it intermeshed more and more with that of profit. At the same time, the growing opposition of inventors to academic power and censorship in the name of creators' natural rights also favoured this evolution. Legal procedure was becoming a mere registration, as in England, which was a model for this redefinition of privileges at the end of the century. This led to changes in the examination. Even if the Bureau du Commerce was not unanimous, the exclusive privileges were granted less on the basis of utility than in virtue of difference in the nature of the processes invented. Examinations also aimed to certify reliability. As patterns of consumption were more and more diversified, as different standards of quality were coexisting in the marketplace, the state sought to help the consumers to make their choices by guaranteeing that new products were healthy (food but also kitchenware, equipment to make wine, oil, starch, vinegar ... and cosmetics96) and that there was no cheating on quality thanks to certifications and specifications available to the public.97 In a similar way, the state wanted to prevent gullible investors from being cheated and to protect the inventor of limited means from the depredations of powerful capitalists. Like in England, since the Bubble Act, History of Technology, Volume Twenty-four, 2002

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joint-stock companies for exploiting inventions were restricted and controlled. This was readopted by the brevet in 1791 which led to a ban on joint-stock companies (until 1806).98 Capitalism did not mean any disruption of social cohesion. This also explained the maintaining of public funds for the promotion of innovation during the Revolution {Bureau de Consultation des Arts et Metiers in 1790)." The state intended to preserve the resources of the economic actors (inventors, capitalists, consumers) and the access of the greatest part of the nation to technical progress and welfare. This was matched too by the development of technical training and information in the long term (a national repository of inventions in 1782, the Conservatoire des Arts et Metiers in 1794, technical schools, proliferation of lists, specifications, journals, practical literature, tracts, advertisements ...). The emphasis shifted from proof positive through regulation, in the hands of the state and the academicians, towards public judgement and individual responsibility, provided that modernization did not threaten the public good. Such ideology ran through the Enlightenment into the Revolution. CONCLUSIONS The cases of Piedmont and France reveal that during the eighteenth century, privileges were a flexible institutional resource that was reshaped according to local contexts of utilization. Depending on periods, regions, and the expectations of actors, the public credit embodied in this right could favour or inhibit innovation and technological policies of independence. In the two countries, privileges for invention (exclusive or not) had presented some advantages. First of all, the policy of privilege offered the possibility of encouraging foreign artisans to settle and to share their knowledge. At the end of the eighteenth century, the Piedmontese government thought that 'the acquisition of an artisan, or of an entrepreneur in a nation frequently brought forward the progress of a century'. This was the case with John Kay in France. Then, the preservation of the system of privilege allowed the rulers to maintain a control over the productive forces, control important for the conviction that under a free market crises of over- or underproduction could occur with dramatic effects on employment and public control. However, these monopolies could also come to a deadlock for at least two reasons. First, privileged manufactures were sometimes too powerful and could choke innovation by limiting competition. This happened in Piedmont (Ormea) but also in France where Holker's fiscal exemptions in chemicals were strongly opposed by competitors under Necker.100 In both states, innovative entrepreneurs were asking for more resources to benefit from market competition. This was confirmed by economists who observed the English system. In response, the French government began to grant monopolies for invention more easily; privileges were no longer considered as brakes to economic competition. In the long term, this was an evolution leading to a privatization of knowledge and to the growth of History of Technology, Volume Twenty-four, 2002

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markets of inventions. Innovation more and more relied on the resources of the inventors, on their commercial skill and on their juridical ability. Second, before reaching this stage, governments preferred to help the diffusion of innovation by promoting human mobilities and apprenticeship rather than develop the commercialization of knowledge that would have recognized private rights to inventors.101 Although there was a change in the 1780s in France, eighteenth-century privileges were mainly based upon academic examination. The inventors' opposition to the tribunal of science favoured claims for a natural right, which the brevet recognized in 1791. In Piedmont, this new system was soon adopted during the French occupation (Napoleon), although the Restoration resettled the previous procedure, which lasted until Cavour modernized a range of economic institutions in 1855. The critique of the existing system of privilege in the late eighteenth century, based on arguments about the right of entrepreneurial freedom and the extortion that would result from the maintenance of privilege, bolstered, on a fertile background, by the influence of the foreign writers, modified the attitude towards privileges. But the new institutional frame built up in France since 1791 was far from satisfying all inventors. As in England, in France inventors had to pay for brevets, they had to risk their assets and to build up strategies to secure their investments. This contradiction of the brevet, ratifying a natural right but closing markets to small inventors, was immediately denounced by societies of inventors during the Revolution, like the Societe du Point central des Arts et Metiers. Some manufacturers were also disappointed as the brevet was no longer expressing any guarantee from the state; without examinations, its value seemed more fragile.102 In both cases, the criticisms focused less on the question of the diffusion of knowledge than on the lack of incentives to innovate.

Notes and References 1. For the flexibility of juridical forms, see M.-A. Hermitte, 'Les concepts mous de la propriete industrielle: passage du modele de la propriete fonciere au modele du marche', in B. Edelman and M.-A. Hermitte (eds), L'homme, la nature et le droit (Paris, 1988). 2. D. Foray, Veconomie de la connaissance (Paris, 2000), ch. V. 3. A.-F. Gargon and L. Hilaire-Perez, 'Open technique between community and individuality in eighteenth-century France', in Ferry de Goey and Jan Willem Veluwenkamp (eds), Entrepreneurs and Institutions in Europe and Asia 1500-2000 (Rotterdam, 2002), 237-56. 4. IWrf.,65. 5. L. Dolza and M. Vasta, Tra diffusione e tutelar i paradossi dell'attivita innovativa', in Storia della Scienza vol.5: Conoscenze scientifiche e trasferimento tecnologico (Turin, 1995), 7 P.O. Long, Openness, Secrecy, Authorship. Technical Arts and the Culture of Knowledge from An to the Renaissance (Baltimore, 2001); id. (1991), 'Invention, authorship, "intellectual property", and the origin of patents: notes toward a conceptual history', Technology and Culture, 32, 'Patents and Invention', 846-84; P. Braunstein, 'A l'origine des brevets d'invention aux XlVe et XVe siecles', in F. Caron, Les brevets, Leur utilization en histoire des techniques et de Vecono (Paris, 1984), 53-60. 6. For the 'good properties' of Italian privileges in the Renaissance, see: M. Belfanti, 'Corporations et brevets: les deux faces du progres technique dans une economie preindustrielle (Italie du nord, XVIe-XVIIIe siecle)', in A.-F. Garcon and L. Hilaire-Perez (eds), Les chemins de la nouveaute. Innover, inventer au regard de Thistoire (Paris, 2003), Collection Histoire, no. 9 (forthcoming). History of Technology, Volume Twenty-four, 2002

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7. C. MacLeod, Inventing the Industrial Revolution. The English Patent System, 1660-1800 (Cambridge, 1988),firsted. in paperback 2002, ch. I; C. Maitte, 'Corporation et politique au village: Altare entre migrations et processus de differenciation sociale', Revue Historique, 2001, 617: 45-79; P. Brioist, Les cercles intellectuels de Londres, XWe-XVIIe siecle, PhD thesis, Florence: Institut universitaire europeen, 1993 (to be published); P.O. Long, op. cit.; id., 'The openness of knowledge: an ideal and its context in the 16th-century. Writings on mining and metallurgy', Technology and Culture, 1991, 32: 318-55. 8. C. MacLeod, ibid. 9. L. Dolza, 'Le richieste di Privilegio industriale in Piemonte (1814-1855): un inventario', in L. Dolza, V. Marchis, M. Vasta, I privilegi industriali come specchio delVinnovazione nel Piemonte Preunitario (Turin, 1992), 15-114; L. Hilaire-Perez, L'invention technique au siecle des Lumieres (Paris, 2000a); id., 'Technical invention and institutional credit in France and Britain in the 18th century', History and Technology, 2000b, 16: 295-306. 10. S. Cerutti, 1995), 'Normes et pratiques ou de la legitimite de leur opposition', in B. Lepetit (ed), Les formes de I 'experience; une autre histoire sociale (Paris, 1995), 126-49. 11. L. Dolza, 'I privilegi industriali nel Piedmonte pre-Unitario', 77 Coltello di Delfo, 1994: 31-7; G. Gayot, 'Les entrepreneurs au bon temps des privileges la draperie royale de Sedan au XVIIIe siecle', Revue du Nord, 1985, 265: 413-45. 12. L. Hilaire-Perez, 'Diderot's views on artists' and inventors' rights: invention, imitation and reputation', British Journal for the History of Science, 2002, 35: 129-50. 13. L. Dolza, 'Alia frontiera della Rivoluzione. Note sullo sviluppo tecnologico nel Piedmonte Preunitario', in PL. Bassignana, Le macchine della Rivoluzione (Turin, 1990), 165-78; L. Hilaire-Perez, (2000a), op.cit., ch. 2. 14. L. Dolza, 'Le richieste di Privilegio industriale in Piemonte 1814-1855', in V. Marchis, L. Dolza and M. Vasta, I privilegi Industriali come specchio delVinnovazione nel Piedmonte preun (Turin, 1992), 15-20; id. (2000), 'Utilitas o utilitarismo? II ruolo sociale della scienza nell'Accademia delle Scienze di Torino', in F. Abbri and M. Segala (eds), 77 ruolo sociale della scienza. Ricerca e istituzioni scientifiche nello Stato moderno, 1789-1830 (Florence, 2000), 17-35 Hilaire-Perez, 'L'examen des inventions au XVIIIe siecle', in C. Demeulenaere-Douyere and E. Brian (eds), Reglement, usages et science dans la France de VAbsolutisme (Paris, 2002), 309-21. 15. D. Roche, La culture des apparences. Une histoire du vetement XVIIe-XVIIIe siecle (Pa 1989); L. Dolza, 'Dyeing in Piedmont in the Late Eighteenth Century', Archives Internationales d'Histoire des Sciences, 1996, 46, n. 136: 75-83; id. (1999), 'How did they know? A successful artisans networ.k: the art of dyeing at the end of the eighteenth century', in R. Fox and A. Nieto-Galan (eds), Natural Dyestuffs and Industrial Culture in Europe, 1750-1880 (Canton, 1999), 129-60. 16. L. Dolza (1999) op. cit. 17. AA.W, Torino sulFilo della Seta, G. Bracco (ed), 1991, Turin. 18. L. Dolza, The struggle for technological independence: textiles and dyeing in eightee Century Piedmont, unpublished M. Litt. thesis, University of Oxford, 1995. 19. G. Levi, 'La Seta e l'Economia Piemontese del Settecento. A Proposito di un Saggio Inedito di Dalmazzo Francesco Vasco', Rivista Storica Italiana, 1967, LXXIX: 803-41; G. Prato, La vita economica in Piemonte a mezzo del secolo XVIII (Turin, 1908); M. Abrate, 'Elementi per la Storia della Finanza dello Stato Sabaudo nella Seconda Meta del XVIII Secolo', Bullettino Storico Bilbiografico Subalpino, 1969, 67: 389-406. 20. On Victor Amadeus and his industrial policy, cfr. G. Symcox, Victor Amadeus II. Absolutism in the Savoyard State, 1675-1730 (London, 1983). 21. G. Quazza, Le Riforme in Piedmonte nella prima Meta del Settecento (Modena, 1957), 242-4. 22. On the establishment of the new tribunal, its relation with the previous one and its importance, see the work of S. Cerutti, Mestieri e Privilegi. Nascita delle Corporazioni a Torino, Secoli XVII-XVII (Turin, 1992), 130-9; F.A. Duboin, Raccolta per Ordine di Materie delle Leggi cio Editti, Patenti, Manifesti ecc. Emanate negli Stati di Terraferma sino alV8 Settembre 1798 dai della Real Casa di Savoia (Turin, 1820-69), 31 vols, vol. 4, 794. Further reorganizations of Consolato in 1701, 1713 and 1723 confirmed it as an agency mainly for supervising economic development. On its French equivalent, the Bureau du Commerce, see H.T. Parker, The Bureau du Commerce in 1781 and its Policies with Respect to French Industry (Durham, 1979). It covers period from Colbert to 1781. History of Technology, Volume Twenty-four, 2002

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23. For the guilds system see S. Cerutti (1992), op. cit, and I.M Sacco, Professioni, Arti e Mestieri in Torino dal secolo XTV al secolo XIX (Turin, 1992). 24. Ibid. A sweeping reform was undertaken and the guilds' statutes were rewritten. The choice of officers was made subject to the approval of the duke. 25. Duboin, op. cit., vol. 16, 957 (2 October 1687). 26. On 8 April 1691 the brothers Ambrosetti, owners of a woollen industry in Sordevolo, a town in the Biellese, agreed with the government to supply grey fabrics for the army at a fixed price. Archivio di Stato di torino (from now onward AST), M.E., Demanio, donativi, sussidi, m.IV, n.13. Quoted in G. Quazza, op. cit., 258. 27. Blackley (ed), The Diplomatic Correspondence of the Right Hon. Richard Hill Envoy Extraordinary from the Court of S.James to the Duke of Savoy (London, 1845-8, 2 vols), vol. 2, 814. 28. The idea was to promote the textile industry following the charitable example of the Borromaic Counter-Reformation. Cfr. C. Rosso, 'Seta e Dintorni: Lombardi e Genovesi a Torino fra Cinque e Seicento', Studi Storici, 1992, 33, 175-93. The Albergo was directed for several years by foreigners, mainly people from Milanese and Genova. Many of the provisions favouring the Albergo are detailed in G. Ponzo, Stato e Pauperismo in Italia: VAlbergo di Virtu di Torino (1580-1836) (Rome, 1976), 99-120. See also AST, Sez.l, Luoghi pii al di qua dei Monti, m.16 d'addizione, Albergo di Virtu, fasc. 3. For the problem of poverty in Piedmont see S. Cavallo, 'Conceptions of Poverty and Poor-Relief in Turin in the Second Half of the Eighteenth Century', in S. Woolf (ed), Domestic Strategies: Work and Family in France and Italy (Cambridge, 1991), 148-89. 29. In 1720 the ex-director of the Ospedale, Van der Rich, obtained a loan from the government to set up a woollen factory on his own. He received the government's order for 18,000 metres of fabrics, to thank him for his long-standing contribution in this trade. G. Quazza, op. cit., 258. 30. G. Levi, 'Mobilita della Popolazione e Immigrazione a Torino nella Prima Meta del Settecento', Quaderni Storici, 1971, VI, 2: 510-54. 31. S. Cavallo, op. cit. 32. AST, Provincia di Torino, mazzo 5. 33. AST, Materie Economiche, Ubena, m.l, n.2, quoted in Quazza, op.cit., 241-94. 34. On the commercial relationship between England and Piedmont in this period see F. Venturi, 'II Piemonte nei Primi Decenni del Settecento nelle Relazioni dei Diplomatici Inglesi', Bollettino Storico Bibliografico Subalpino, 1956, 54: 227-71. On the growth of English trade see R. Davis, 'England and the Mediterranean, 1570-1670', in F.J. Fisher (ed), Essays in the Economic and Social History of Tudor and Stuart England in Honour ofR.H. Tawney (Cambr 1961), and id. (1954), 'English Foreign Trade, 1660-1700', Economic History Review, 7. In 1699, in England, a third of the imported silk was from Italy. Cfr. also G. Symcox, op. cit., 337. G. Contessa, 'Aspirazioni Commerciali Intrecciate ad Alleanze Politiche della Casa Savoia coll'Inghilterra nel Secoli XVII e XVIII', Memoria Accademia delle Scienze di Torino, 1914, series 11,64: 11-50. 35. On the Savoy's policy on charity see S. Cavallo, Charity and power in early modern Italy. Benefactors and their motives in Turin, 1541-1789 (Cambdrige, 1995). 36. Duboin, op. cit., 585. 37. Ibid., 590; Quazza, op.cit. 38. Symcox, op. cit, 208. 39. The case of industrial espionage of Thomas Lombe is quite famous. He set up the first English silk-spinning factory, in Northampton, aided by the government which rewarded it with several privileges. See G.R. Porter, Treatise on the Origins, Progressive Improvement and the Present State of the Silk Manufacture (London, 1831); G. Hilton Jones, 'English Diplomacy and Italian Silk in the Time of Lombe', Bullettin of the Institute of Historical Research, 1961, 34: 184-91. Amongst the writings which have referred to eighteenth-century industrial espionage, especially between England and France, the one specifically on the topic is J.R. Harris, Essays in Industry and Technology in the Eighteenth Century: England and France (Variorum). Further, Eric Robinson's paper, 'International Exchange of Men and Machines', Business History, 1958; I; A.E. Musson, 'The Manchester School and the Exportation of Machinery', Business History, 1972, 14; Peter Mathias, 'Skill and the Diffusion of Innovations from Britain in the Eighteenth Century', Trans. Royal Historical Society, 1975, 25; provide an excellent background.

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40. There were some, like the minister Saint Lorain, who were not convinced of it and who tried unsuccessfully to change the king's mind. See G. Quazza, op. cit., 261. 41. Ibid, and Duboin, op. cit, 16, 973 (22 June 1725). 42. Quazza, op. cit., 263-9; Duboin, op. cit, 16, 625 (19 June 1725). The same edict had also been published two years before, in 1723, ibid., 623 (30 May 1723), but only for a few kinds of cloth. The debate that followed the edict, shown in these pages, was very interesting and rich in information. 43. Ibid., 629 (7 June 1726). 44. A report of the 'Commissioners for Trade and Plantation' in 1726 confirmed the importance of Piedmontese silk for the English trade: 'which is thefinestsilk that is produced in any part of the world'. Journal of the Commissioners for Trade and Plantations from January 1722-23 to December 1728 Preserved in the Public Record Office (London, 1928), 385. 45. Duboin, op. cit, 16, 590 (7 May 1726). 46. Ibid., 508 (9 November 1720). 47. Ibid., 968 (6 September 1721). 48. Ibid., 954 (28 May 1722). 49. In the manuscripts it sometimes appears as Swarz. 50. Duboin, op. cit, 16, 970 (24 May 1724). 51. The government loaned him 5,000 lire. The loan was to be repaid in ten years. Ibid., 16, 973 (23 June 1723). However, the budget was not adequate as the following year Suarz asked the government for another loan for double the amount of money. He asked them to buy more equipment for his dye shop and for permission to extend it into the house which had been previously occupied by the Frenchman Rounelleau before he died. Ibid., 973 (23 and 28 June 1723). 52. In the 1720s the free entrance of cochineal (the French chenille) for dyeing in red was permitted. Suarz obtained the privilege to dye with this dye also. Ibid., 16, 933 (31 December 1721; 2 January 1723; 27 December 1725; 1726; 1 January 1727; 22 December 1727). Later, when the local production of madder was started, he was to obtain the privilege to dye with it. 53. At the same time as Suarz gained a sort of monopoly for dyeing in Turin, Biella was banned from dyeing cloth which was not produced in its own territory. This shows that the government was trying to create self-sufficient microcosms in its territory, especially after the establishment of the new factory in Ormea and to prevent Biella from concentrating all the woollen industry in its territory. Ibid., 975 (18 January 1726). 54. AST, Sez.Riunite, Finanze, 1 arch., Commercio ..., mazzo 1. 55. In 1755 the dyers were again asked to leave the town and move to Borgo Po for hygienic reasons. The town was growing and it needed the space taken by manufactures, furthermore it became essential to control the dye shops once their importance began to be realized. This new edict, followed by almost every dyer, provoked the dislocation of dyers in Borgo Po village and offered the chance to study them at a different level. For example, a thesis in Modern History at the University of Turin studied their demography during the eighteenth century. See unpublished thesis, 'Un Borgo di Torino nel Triennio 1793-95', student: Francesca Fabrizio, Prof. Adriana Lay, A.A. 1990-1. It refers to an unpublished manuscript held in ASCT, collezione XII, vol. 159-161-162. 56. To dye in blue (with woad, as indigo was not yet used in Piedmont) cost 11 lire for each cloth. To dye red with madder cost 15.10 lire for the same cloth, and for dyeing without madder 13.10. To dye in the other colours was far cheaper. AST, Sezione I, Commercio, cat. 4, Lanifizi, m.ll, 'Tariffa del Consiglio di Commercio per Tintori e pressatori dei pannilana' (19 July 1735). 57. Duboin, op. cit, 'Rapport de President du Conseil du Commerce sur plusieurs privileges et graces accordees a un maitre teinturier etranger (Jean Oilier, francois) pour le dedommager des pertes faites pour le soutien de son etablissement de teinturerie dans la ville de Turin', 30 September, 1751, 940. 58. ASTO, Sez. 1, ME, cat. 2°, mazzo 2, da ordinare 'Copia di Regie Patenti d'erezione del Consiglio del Commercio'. 59. Ibid., Tstruzioni pel Consiglio di Commercio, 15 gennaio 1729'. 60. Id.

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61. ASTO, Sez. I, Reg. 3, 'Concessioni di Sua Maesta per manifatture e privilegi principiante li 17 ottobre 1776 al 1825'. 62. On the Marquis d'Ormea cfr. P. Merlin, C. Rosso, G. Symcox and G. Ricuperati, // Piemonte sabaudo. Stato e territori in eta moderna (Turin, 1994), 458-71. 63. For the manufacture at Ormea see Prato, op. cit., 240. 64. Members of aristocracy could not personally pursue trade. AST, MC, cat. 1, m.l, n.5; but several of them had interests in industry, see Quazza, op. cit., 283-4. Marquis d'Ormea furthermore was a member of the government. He obtained the privilege of owning a factory in 1729. See Duboin, op. cit., 16, 705, 'nonostante il divieto delle Regie Costituzioni si permette al marchese Ormea di continuare a possedere il lanificio d'Ormea senza che tale impresa industriale possa offuscare in alcun modo il lustro dei suoi natali'. 65. The government decided to prohibit merchants from foreign 'panni ordinari', 'R. Biglietto con il quale S.M. determina quali siano le stoffe di lana forestiera d'inferiore prezzo l'introduzione delle quali e vietata ai mercanti', Duboin, op. cit., 17, 636 (29 September 1730). 66. Quazza, op. cit., 271. 67. Duboin, op. cit., 16, 529 (12 April 1732). 68. On the re-localization of the woollen factories, and the interesting debate surrounding it, see C. Maitte, 'Etat, territoire et industries au Piemont au XVIIIe siecle', in Journee Pierre Deyon, 2002, forthcoming. 69. The state of the woollen industry in 1756 is in Biblioteca Reale of Turin, cod. 970, 'Panni del Piemonte', 'Stato dei lanifici del Piemonte nel 1757'. The statistic said circa 9,000 people were employed in the woollen manufacture in Piedmont at that time. Conward reported that, because of the scarcity of raw materials, four woollen industries were forced to stop production in the same period of the year, while Ormea was relying on the French and Roman imports. 70. Dolza, (1999), op. cit. 71. In 1760 the government acknowledged the utility of breeding sheep close to Turin, but it was an inadequate proposal compared to the needs of the industry. Only shortly before the Restoration were merino sheep raised in Piedmont. 72. On the Rosine, cfr. S. Cavallo, op. cit., and C. Danna, L'Istituto creato da Rosa Govona (Turin, 1876); P. Matta, Breve Monografia del Regio Istituto delle Rosine (Turin, 1889); C. Turletti, Vita di Rosa Govona, Fondatrice del Regio Istituto delle Rosine (Turin, 1896). On the relationship between industry and charity during the eighteenth century in France and Piedmont cfr. L. Dolza, L. Hilaire-Perez and Z. Weygand, 'Les institutions d'assistance aux XVIIIe et XIXe siecles a Paris et a Turin: des ateliers entre rentabilite, philanthropic et experimentation', in Le travail et les hommes (Paris, 2002), to be published. 73. This motto was written on the main door of the poorhouse. Matta, op. cit. 74. Biblioteca Comunaledi Torino, Manuscripts, 'Riflessioni del conte Donaudi delle Mallere sopra varii rapporti dellefinanzecol commercio, con alcune osservazioni riguardanti le Finanze, e il Commercio negli Stati di S.M.', January 1779. 75. AST, Sez. 1, M.C., cat.4, Lanifizi, m.13, 'Stato delle Stoffe di Lana fabbricanteesi ne'Lanifizi del Piemonte escluso il Biellese nell'anno 1779 col relativo valore in Fabbrica'. Thefinalcost of a fabric was reported as 20-25 per cent higher than in the manufactures in Sedan. 76. MacLeod, op. cit., 92, 102; A. Randall, Before the Luddites: Custom, Community and Machinery in the English Woollen Industry, 1776-1809 (Cambridge, 1991). 77. C. MacLeod, op. cit., 63; A. Paulinyi, 'Patente die keine rendite brachten: der fall von John Kay und Edmund Cartwright', in Caron, op. cit., 87-100; J. Mokyr, The Lever of Riches. Technological Creativity and Economic Progress (Oxford, 1990), 255-6. 78. MacLeod (1988), op. cit., 60, 193. 79. Ibid., 97-114; Hilaire-Perez, op. cit., 189-223; id. (2001), 'Les economies du savoir en Angleterre au XVIIIe siecle: le cas des inventeurs', in F. Lachaud, F.-J. Ruggiu and I. LescentGilles, Histoires d'Outre-Manche. Tendances recentes de Vhistoriograghie britannique (Paris, 186-206. 80. Hilaire-Perez, op. cit.; id. (2000b), op. cit.', D. Roche, Le siecle des Lumieres en province. Academies et academiciens provinciaux, 1680-1789 (Paris, 1978); R. Hahn, The Anatomy of a Scientific Institution. The Paris Academy of Sciences, 1666-1803 (Berkeley, 1971); P. Minard, La fortune du colbertisme. Etat et industrie dans la France des Lumieres (Paris, 1998). History of Technology, Volume Twenty-four, 2002

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81. Centre historique des Archives nationales (CHAN): F12 992, F12 993. 82. Hahn (1971), op. cit.; Hilaire-Perez (2000a), op. cit.; E. Brian, La mesure de VEtat. Administrateurs et geometres au XWIIe siecle (Paris, 1994); Minard (1998), op. cit. 83. C. Licoppe, La formation de la pratique scientifique. Le discours de Vexperience en Fran enAngleterre (1630-1820) (Paris, 1996). 84. Ibid., 52-7. 85. CHAN: F12 993, E*2695. 86. S. Meyssonnier, La balance et Vhorloge. La genese de la pensee liberale en France au XV siecle (Montreuil, 1989); J.-C. Perrot, 'Economie politique', in Une histoire intellectuelle de Veconomie politique (XWIe-XVIIIe siecle) (Paris, 1992), 63-95. 87. S.L. Kaplan, Les ventres de Paris. Pouvoir et approvisionnement dans la France d'Anci Regime (Paris, 1988), 328-85. 88. Hilaire-Perez (2000a), op. cit., 124-33. 89. H.T. Parker, The Bureau of Commerce in 1781 and its policies with respect to Frenc industry, op. cit., 50. 90. CHAN: F12 993. 91. CHAN: F12 992. 92. S. Chassagne, Le coton et ses patrons. France, 1760-1840 (Paris, 1991); J.R. Harris, Industrial Espionage and Technology Transfer; Britain and France in the 18th-Century (Alde 1988). 93. CHAN: F12 1341. 94. Hilaire-Perez, (2000a), op. cit., 286-7; P. Bret, LEtat, Varmee, la science. Vinvention de la reh erche publique en France (1763-1830) (Rennes, 2002). 95. CHAN: F12 1295; Dolza, Hilaire-Perez and Weygand (2002), op. cit. 96. C. Lanoe, 'La ceruse dans la fabrication des cosmetiques sous l'Ancien Regime (XVIe-XVIIIe siecles)', Techniques and culture, 2001, 38: 17-33. 97. Hilaire-Perez (2002), op. cit.; L. Hilaire-Perez, 'Les boutiques d'inventeurs a Londres et a Paris au XVlIIe siecle: jeux de l'enchantement et de la raison citoyenne', in N. Coquery (ed), La boutique et la ville. Commerces, commercants, espaces et clienteles (Tours, 2000), 171-8 98. P. Jobert, 'L'incompatibility entre brevets d'invention et societe anonyme sous la Revolution et I'Empire', in G. Gayot and J.-P. Hirsch (eds), La Revolution Frangaise et le developpement du capitalisme, Revue du Nord, 1989, 5 hors-serie, 227-41. 99. Bret (2002), op. cit. 100. Hilaire-Perez (2000a), op. cit., 250. 101. L. Hilaire-Perez, 'Cultures techniques et pratiques de l'echange, entre Lyon et le Levant: inventions et reseaux au XVlIIe siecle', Revue d'Histoire Moderne et Contemporaine, 2002, 49-1:89-114. 102. J.-P. Hirsch, 'A propos des brevets d'invention dans les entreprizes du Nord au XIXe siecle', Revue du Nord, 1985, 265: 447-59.

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SAIZ

GONZALEZ

INTRODUCTION The influence of processes of innovation and technical change on economic growth is unquestioned by most economists and economic historians. However, the analysis of the forces and mechanisms that connected them has been a major topic of debate and controversy in the specialized literature. Hence, in several of the first and most well-known theoretical constructs in this respect, such as those of Schumpeter or Kuznets, the variations in growth cycles were explained as a function of the changes in the adoption and diffusion of innovations.1 From this vantage point, inventive activity became fundamentally a problem of supply, which, upon its introduction in the processes of production on the part of restless entrepreneurs, led to 'clusters' of innovations and towards industrial expansion. From the opposite perspective, at the beginning of the 1960s, J. Schmookler formulated the idea that it was the demand for technical solutions in the growing production sectors that was the ultimate origin of the processes of invention and innovation, and sparked the debate within the framework of economic rationality. In order to do that, Schmookler attempted to demonstrate how inventions measured by patents followed production in certain American industries.2 Later, other researchers, such as N. Rosenberg, or even J. Mokyr, attempted to reconcile both questions, since, without denying the role of demand in influencing the rhythm and direction of the invention and innovation processes, they pointed out that this was produced within the limits of scientific and technological supply, which did not advance equally in all disciplines.3 These three main lines of theoretical argument have obviously been studied, detailed and developed by many other authors who have contributed to enriching, diversifying and endogenizing the debate. 4 Each in their own way has shed light upon the systems of interaction between technical change and economic growth, and collectively, have reinforced * I want to thank the helpful comments from the editors A. Guagnini and I. E. Inkster. I also must thank many ideas and comments from F. Esteve and E. Beatty and discussions with J. A. Alvarez, L. M. Bilbao, F. Cayon, Z. Khan, R. Lanza, C. Macleod, M.J. Matilla,J. M. Rodriguez and J. L. Zofio. Any remaining errors in the text are my responsibility. History of Technology, Volume Twenty-four, 2002

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The Spanish Patent System

the idea of the existence of complex links, processes of feedback and institutional conditioning in the complicated relationship between technology and economy. Especially among historians, mid- and longterm reflections on technological change and economic growth have 5 occupied thousands of pages not easily summed up; from general works to approximations focused on concrete processes of national modernization, not to mention the numerous examples of sectorial or regional studies in which the analysis of technology takes a prominent place. These types of studies of an historical nature have allowed an in-depth debate. 6 But, in general, what we would like to point out here is that most of this historic research - centred on mid- and long-term analysis - on the processes of invention, innovation, technological change and economic growth has had two common denominators: a) interest in models of economically more developed pioneering countries or followers and b) the use of series of patents as a technological indicator. With respect to the first focus, beyond pointing out that research on technological change and growth has been centred on the leading capitalist countries, we would like to emphasize the lack of studies on underdeveloped countries, those latecomers, a study of which would allow us to follow their development and the characteristics of their systems of innovation, what type of institutional changes they experienced and how these influenced the processes of modernization and growth (whether or not they experienced stages similar to their predecessors). Thereby we might uncover what the analysis of undeveloped systems adds to the previous debate on the relationship between technology and economic development. With respect to the second point - the use of patents - it appears to be obvious that in the absence of real data, sufficiently broken down, on inventive and innovative activity in different economies, it has been necessary to fall back on indirect indicators; that is, with the impossibility of measuring all technologies and organizational changes incorporated in the production process, as well as other questions related to the training of human capital and know-how, most researchers have used the information contained in patents as a substitute, although other systems have also appeared - in general much more limited and imperfect - based on the analysis of R & D expenditures, 7 of changes in productivity,8 of scientific publications9 or even of international industrial expositions10. In fact, the object of this study is to use documentation on patents as a partial technology indicator, and, above all, as an investment indicator in new technologies11 in order to analyse the formation, evolution and characterization of the Spanish technological system during the nineteenth and the beginning of the twentieth centuries. From our point of view, ceteris paribus, the decision to patent is based on the intuitive expectation of profits with the new technology - which is influenced both by economic growth itself and by marketing possibilities, as well as by institutional questions, such as the real possibility of enforcing the patent monopoly12 - and the cost of obtaining the monopoly - in monetary and institutional terms (the existence of required exams or the necessity of History of Technology, Volume Twenty-four, 2002

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implementation, etc.). In general, as occurs in other types of capital investments, success is determined by multiple circumstances, which does not invalidate the possibility of studying the intensity and direction of investment activity. To accomplish that, we will attempt to a) characterize and analyse the Spanish institutional environment related to industrial property to measure the degree to which it supported innovative activity; b) explain the evolution of registries throughout the ninetheenth century and discover the degree of foreign presence in the system; c) analyse the patents solicited by residents in Spanish territory to see whether their geographic distribution over time is related to the formation and integration of the national market; d) study the presence of firms in the system and what socio-professional activities the applicants were engaged in, which could help determine the degree of complexity of technology in Spain; e) describe how the investment processes in technologies were distributed within the economic structure of the country to discover in which sectors innovative activity was concentrated and if it coincided with what we know about the Spanish industrialization process; and finally, f) study the obligatory exploitation of patents and the duration of monopolies, to attempt to uncover data on the real effectiveness of the system in inducing innovation and the forces which brought this about. To achieve this, the research method used has been fundamental, avoiding indirect sources and centring on original documentation - that is, on administration files and descriptive reports deposited in the Spanish Patent and Trademarks Office (OEPM) - we were able to carry out a serious criticism of sources, which helped us to bring to light and understand the system's functioning. Among other things, it was fundamental in order to access various data on applicants, the transfer of rights, some lawsuits, reasons for patent expiration, renewals, fees, and above all, the approval of obligatory implementation of patents, which occasionally offers information on the establishment of factories, workshops and other locations designed to exploit the invention. All told, throughout the last decade we have studied approximately 48,000 files (including some royal privileges from the 'Ancien-Regime') which cover the period 1770-1907. Such a research task would have been considered as being quite out of the question without the founding of a Convention in 1999 between the Universidad Autonoma de Madrid and the OEPM, where the task of cataloguing and research is carried out.13 THE INSTITUTIONAL ENVIRONMENT As with other European absolute monarchies, throughout the modern age, royal privileges were granted arbitrarily to inventors and innovators of new technologies, but contrary to that of England and France,14 in Spain there was never a general law regarding this point. The first documented reference to those privileges goes back to 1478, during the reign of Isabel, the Catholic monarch, with special interest regarding those granted during the sixteenth and the turn of the seventeenth century.15 Those History of Technology, Volume Twenty-four, 2002

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The Spanish Patent System

privileges, together with monetary rewards, government posts or assistance, continued to be the only system to motivate invention and innovation up until the eighteenth century, with Spain heavily regulated both socially and economically, impeding private appropriation and market development. We would have to wait until the final disaster of the 'Ancien Regime' to witness the birth of modern regulations concerning industrial property, which, together with additional economic legislation and institutional changes, allowed the birth of capitalism, and was the direct heir of the process of liberal revolution. The first Patent Law was decreed in 1811 by the 'French' government of Joseph Bonaparte,16 after the Napoleonic invasion, and as could be expected, it was practically a copy of the French Revolution Decree of 1791,17 although it barely left any Table 1 Patent legislation in Spain, nineteenth and twentieth centuries Patents of Maximum LAW Preliminary examination introduction patens duration 1811 No previous technical Yes, for 5 years (it is not 15 years or novelty examination specified if it can or not prevent importations) Yes, for 5 years without 1820 As in 1811 10 years ability to prevent importations

Priority rights to foreign patents No No

1826

As in 1811

As in 1820

15 years

No

1878

As in 1811

As in 1820

20 years

Yes, limited to 2 years but penalized until 1883

1902

As in 1811

As in 1820

20 years

1929

As in 1811

Yes, for 10 years without ability to prevent importations

20 years

Yes, limited to 1 year according to international agreements As in 1902

1986

Technical examination and novelty registration

No

20 years

As in 1902

Source: J.P. Saiz Gonzalez (1996). History of Technology, Volume Twenty-four, 2002

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mark during the War of Independence. After the brief interlude highlighted by the return of Ferdinand VII as absolute monarch, there was a renovated attempt - during the Liberal Triennial and second act of the bourgeois revolution - to organize property rights of inventions through the passing of the Decree of 2 October 1820, which, though clearly of French inspiration, was in fact domestic legislation.18 Under its auspices the first few patents were granted, remaining in effect at least until 1823 (although some grants were still valid after Ferdinand VII's return to the throne) and it was substituted by the Royal Decree of 26 March 1826.19 This new law introduced modifications in the text which did not alter the spirit of the previous one, becoming, with very few changes, the basis of the system for the next 50 years. The next legislature landmarks were the Law of 30 June 1878,20 during the Bourbon Restoration; the Law of 16 May Additions to patents Yes, but without priority to the original patentee

Implementation in national territory Yes, before 2 years

As in 1811

Yes, before 2 years

No

Yes, before 1 year

Yes, with total preference to original patentee

Yes, before 2 years

As in 1878

Yes, before 3 years

As in 1878

Yes, before 3 years

As in 1878

Total patent Penalties to infringements fees (current prices) and jurisdiction Unknown Confiscation and penalty from 18 to 36€; damages in ordinary courts Penalty of 4 times the Advance payment; invention 3€ estimated damage; jurisdiction in introduction 1.5€ ordinary courts (civil) Advance payment; Confiscation and penalty of invention 5 years 1.5€ 3 times the damage; invention 10 years 4.5€ jurisdiction: Executive until invention 15 years 9€ 1848, when it passed to introduction 4.5€ ordinary courts (civil) Annual payment; Confiscation (or first year: 0.06€ indemnification) and total 5 years: 0.9€ penalty from 12 to 24€ or total 10 years: 3.31€ imprisonment; damages in total 15 years: 7.21€ ordinary courts (civil or total 20 years: 12.62€ criminal) As in 1878 As in 1878

Annual payment; since 1924: Confiscation (or first year 0.06€ indemnification), imprisonment from 6 to 24 total 5 years: 1.05€ total 10 years: 4.66€ months and penalty from 6 total 15 years: 12.47€ to 30€; damages in ordinary courts (civil or total 20 years: 23.29€ criminal) No. Exploitation before 4 Annual payment; Confiscation (or indemnification), years in any country first 2 years: 562.3€ into WTO total 5 years: 651.83€ responsibility and damages total 10 years: 1,211.46€ in ordinary courts (civil or total 15 years: 2,484.70€ criminal) total 20 years: 4,747.09€

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1902;21 the Royal Decree of 26 July 1929,22 during the Primo de Rivera dictatorship; and the 11/1986 Law of 20 March, in the more recent period of democratic normalization;23 all of which has expanded, complicated and adapted industrial property protection over time, although, at least until Spain's entrance in the European Union, the basic structure of the system has remained practically intact.24 So, for example, since 1826, any person or entity, Spanish or foreign, had the right to register patents to protect all types of mechanisms, procedures or products (although the earliest laws did not specify the latter), except, in general, scientific discoveries or marketing ideas which were not converted into practical applications, natural products and during the entire nineteenth and part of the twentieth century - medications. They were never used to monopolize commercial activity (although between 1826 and 1878 they continued to be called 'privileges') and the property rights could be transferred without restrictions as with any other property. As seen in Table 1, until 1986, we must point out the absence of preliminary technical examination or novelty registration, the possibility of obtaining 'patents of introduction' without being the original inventor and without the protected object being a novelty (as long as it was unknown in Spain) and the obligation of implementing or exploiting the patent within Spanish territory in a period of 1-3 years. On the other hand, from 1878 on, the owner of the patent could make small additions without having to apply for a new one (as was the case previous to this date) and since the signing of the Paris Convention of 1883 for the protection of industrial property, previously existing foreign patents have had priority rights, within the time-limits of the agreements. However, priority rights did not eliminate the possibility that with the expiration of the allotted time, anyone could apply for a patent of introduction, although never for more than five years' duration. Patents of invention, however, had a maximum time-limit of 15 years before 1878 (except that prescribed by the Law of 1820) and of 20 years after that date, being extremely costly - for the maximum time period - throughout the nineteenth and the first half of the twentieth century, since it was superior to the annual wage of a qualified worker.25 However, in practice, it was before 1878 when they were really expensive, since the registration fees had to be paid in advance. After that date a system of progressive annual quotas was introduced which supposed an enormous saving in protection rights, since only the first-year fees were necessary to make it effective, although the total amount paid to maintain its validity could be equal to or more than in the previous system if it was renewed during the entire allotted time. The Spanish patent system, therefore, was based on (and was the direct heir of) the first French tradition and, in general, of follower and latecomer countries whose governments attempted to develop processes of innovation, modernization and economic growth over and above intellectual property rights. Moreover, in Spain, these characteristics dating from the nineteenth century were reinforced until well into the twentieth century with a clear strategy of supporting industrial developHistory of Technology, Volume Twenty-four, 2002

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ment. So, on the one hand, a system was constructed to protect national or foreign inventions, and offered fairly long grace periods, clearly defined jurisprudence and fines for frauds committed, which reinforced the strength of the patent;26 but, on the other hand, as we have just explained, there were no filters applied to the granting process (beyond administrative requirements), priority rights for previously existing patents were nonexistent or extremely limited, the introduction of technology was permitted - although with a time-limit, and without impeding the sale of the same product if it were imported - and it was obligatory to exploit the patent within national territory, all of which weakened its force. Here we see clearly an intermediate system where, if the original inventor did not register his advances or the patent did not guarantee factory production of the protected product in Spain, anyone could easily apply for a monopoly for the same product, as long as it was implemented domestically, and therefore promoted technical innovation and diffusion. A system which at the same time offered a certain security, left the door open to imitations and copies, which, probably, was more positive than negative for a scientifically and technologically underdeveloped country that was attempting to catch the last train towards industrialization. We must consider, moreover, that before 1870, we were still in a world of scarce integration of technological markets and that between 1880 and 1930, nationalist and protectionist economies were still the order of the day. It is within this context that, starting with a strong technological and scientific disadvantage, the Spanish institutional environment adopted a hybrid position, which served both to protect the investments of foreign inventors or manufacturers as well as to permit and promote national entrepreneurial projects based on foreign technological introductions. This strategy was not new and in some countries was taken to radical extremes, such as in Switzerland or Holland, where patent laws either did not exist or were abolished for most of the nineteenth century while they were becoming industrialized. In Spain, an enormous problem was the constant increase in foreign technological and scientific dependency, while domestic investigation and development was declining; although it began to take place between 1920 and 1930, it was truncated by the Civil War and the Franco regime, and even today is still an unfinished task of the Spanish economy. In spite of this, and practically without its own scientific and technological development, Spain has managed to join the exclusive club of developed nations. EVOLUTION OF REGISTRIES AND BASIC CHARACTERISTICS OF THE SYSTEM: STRONG TECHNOLOGICAL DEPENDENCE Firstly, we must contrast, after analysing the data on Spanish patents, the number of applications during the period studied with those of the more developed surrounding countries. Both in absolute terms and in patents per capita, Spain falls well below the European average so, for example, the mean of annual registration between 1826 and 1907 was 6.5 per cent of those in History of Technology, Volume Twenty-four, 2002

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The Spanish Patent System

England during the same period, 9.7 per cent of France's, 9.5 per cent of those in Germany and 3.6 per cent of the USA average. If these same calculations are made only for patents per capita, the results vary slighdy but continue to indicate the existence of an enormous gap: Spain represents barely 12 per cent, compared to England or the USA, 20 per cent of that of France, and 28 per cent of Germany's percentage.27 In absolute figures, Spanish patent series were also bested throughout the period by Austria-Hungary, Belgium, Italy and Canada, with lewfe similar to much smaller and less-densely populated countries (such as Holland,28 Sweden or Denmark) and only superior to Norway, Finland, Russia or Portugal. In per capita patents, Spain bested the last three countries, not far from Italy or even Austria before 1890, but separated from all other countries by a very wide gap. Graph 1 National and foreign patent applications: Spain 1820-1907 10,000 g

l II i i i i i i i i i i i i i

1820 18261830 1835 1840 1845 1850 1855 1860 1865 1870 1875 1880 1885 1890 1895 1900 — * — Domestic

— • — Foreign

— —

1907

Total

Source: Gaceta de Madrid for privileges from 1820 to 1826. Between 1826 and 1907: Original documents of patents at the Oficina Espanola de Patentes y Marcas (OEPM). Aside from the numerical distance with respect to other countries, which reveals the narrowness of the Spanish market and the relative underdevelopment of processes of technological innovation, it is interesting to observe the annual registration over time. At the end of the 'Ancien Regime', many more awards (cash, government posts, development aid, and so on) than privileges were applied for; we could hardly find 50 privileges between 1770 and 1800 and between 1816 and 1820. This is only a sample, since there are no centralized archives, but we believe it is significant in order to study the protection difficulties encountered by the few entrepreneurs and innovators of the period. It was after the institutional changes induced by the liberal patent legislation of 1820 and the Decree of 1826 that the system began to possess continuity. However, as can be seen in Graph 1, at the beginning there were still very few patents granted due to the political and social instability of the country, while the middleclass revolution and the Carlist insurrections were still ahead. The first important impulse in patent applications took place between 1845 and History of Technology, Volume Twenty-four, 2002

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1864, two more stable and politically moderate decades (except for the 'Bienio Progresista' between 1854 and 1856 in which the foundations for railways and banking were established) and in an early economic growth symbolized by the construction of a railway system and the expansion of industrial activity. The financial crisis of 1864 and the revolutionary events of 1868, which led to Queen Isabel II's exile, once again upset the Spanish political and economic balance during the following years, which had an immediate repercussion on the number of patents solicited. This indicates what a critical moment it was, in which the cantonalist and Carlist rebellions, the changing provisional governments and the establishment of the First Republic had very negative economic consequences, which were not overcome until Alphonse XIFs restoration in 1874-5. From that moment on, and until the end of the period studied, stability reigned, launching the 'peaceful pendulum' of the conservative and liberal parties alternating in power and the consolidation of the capitalist system in Spain. Legal reforms followed, including the Patent Law of 1878, and the economic situation improved, progressively increasing agricultural productivity and mining activity and consolidating industrial areas: Catalonia, the Basque Country, Madrid and Valencia. Due to the preceding and, likely, to lower patent fees, there was a sudden and continuous increase in applications throughout the following decades. Graph 1 also analyses the different patenting behaviour of nationals and foreigners. As seen, before 1845 the system was used more by Spaniards, because the political instability already described and the lack of economic possibilities did not facilitate foreign investment. However, between 1845 and 1878, the number of national and foreign patents evened out, which probably indicated an improvement in legal guarantees and the industrial situation which attracted the first European investors towards basic sectors such as railways or mining. This tendency was accentuated by the legal reform of 1878, which provoked an immediate increase in the percentage of foreign patents over national ones. Undoubtedly the offer of priority rights, the possibility of making additions, and, above all, the cheapening of registration fees greatly influenced the influx of foreign inventors and entrepreneurs. Hence, as seen in Table 1, the requirement to satisfy the fees at once at the moment of registration made the procurement of a patent 150 times more costly than the same action after 1878.29 At any rate, after the institutional changes, the continuing increase in foreign patents must be explained by other factors, such as the increase in business possibilities in the Spanish economy (which, without a doubt, national applicants were also responding to) and, largely, by the tremendous technological expansion by developing countries during the second industrial revolution, which increased the supply of new products and new ways of doing things. It was the moment of the proliferation of corporate patents, international agreements on industrial property and a progressive integration of technological markets which provoked an ever-greater profusion of multiple patents which guaranteed wider geographical protection. History of Technology, Volume Twenty-four, 2002

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Table 2 Patent types and applicants' nationality: Spain 1770-1907 Spanish Spanish Foreign Foreign Presence of Patents patents of patents of patents of patents of foreign invention introduction invention introductiontechnology (a) (c) (d) (b + c + d) (b) % % % % % 1770-1826 55.7 19.0 19.0 6.3 44.3 79 1826-1850 35.1 28.9 17.3 18.8 64.9 890 1851-1878 64.2 35.8 9.9 46.7 7.5 4,244 1878-1907 32.3 8.2 55.7 3.9 67.7 42,312 Source: Archivo Historico Nacional (AHN, Section Fomento) and Gaceta de Madrid for privileges from 1770 to 1826. Between 1826 and 1907: Original documents of patents at the OEPM. The widespread participation of foreign inventors and entrepreneurs in the patent system was one of the basic characteristics of the Spanish model, in which there was an even greater foreign technological presence than the statistics indicate. As seen in Table 2, if we add the number of patents applied for by foreigners to the number of Spanish patents of introduction (which are necessarily based on foreign technological developments), the result is that more than 67 per cent of the patents registered from the end of the eighteenth century to 1907 are based on foreign inventions. Upon breaking down these data into periods, we see that in the sample of 79 privileges and patents granted between 1770 and 1826, the degree of foreign technological presence (b+c+d) is almost 45 per cent, although Spanish applicants predominate. It is not surprising that there was a lesser participation of foreign citizens during a period of international conflict and with Spain experiencing a social, economic, political, military and colonial crisis. In general, as shown, during the first half of the nineteenth century, the use of the Spanish patent system by foreigners was lesser than in the second half; however, due to the proliferation of Spaniards who used the introduction patent, we can see that from 1826 on, foreign technological presence increased, stabilizing at 65 per cent. Between 1826 and 1850 there were also many foreign introduction patents, mainly French (many of them Spanish residents), which were used to protect third-party technologies, taking advantage of business opportunities in the Spanish market. But in the remainder of the period studied (1851-1907) the percentage of patents of introduction compared to patents of invention decreased drastically, both among Spaniards and foreigners, while at the same time foreign invention patents increased, more than likely because, increasingly, the inventors and entrepreneurs who had originally developed the innovations registered them simultaneously in several countries if there was any expectation of profit. This tendency increased between 1878 and 1907, in which foreign technological presence rose to 68 per cent, due, basically, to patents of invention solicited from abroad, to which we must add the 8 per cent of introduction

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patents solicited by Spanish nationals. Therefore, the patent system and, in general, the Spanish technological system manifested, throughout the period, a clear dependence on foreign scientific and technological advances, which continued to increase over time. Finally, we must point out that when the nationalities of the applicants of Spanish patents are studied, we discover a predominance of French manufacturers and entrepreneurs, followed by British, German and American applicants. Before 1878 this tendency was overwhelming, with France making up a total of 31 per cent of all patents, which demonstrates the French interest in investing in new technologies in the Spanish marketplace. The British followed with more than 9 per cent, Americans with 2.2 per cent and Germans with 1.6 per cent.30 However, in the final quarter of the nineteenth century this tendency changed: the participation of France dropped to 17 per cent, that of England stabilized at around 10 per cent, and Germany and the USA increased to over 10 per cent each, corroborating the international competition of these two economies, during their technological and industrial expansion.31 Generally, this distribution of nationalities with respect to foreign patents coincides perfectly with studies on foreign capital investments in Spain during the same period, which strongly suggests that patents can be used as valid indicators of investment in new technologies.32 ! APPLICANTS' RESIDENCE AND REGIONAL DISTRIBUTION OF PATENTS Another interesting aspect of the Spanish patent system which deserves analysis is the applicants' place of residence, vital to the understanding of geographical distribution of innovative activity in Spain and of the foreign inventors' and entrepreneurs' contact with the real economy of the country. As seen in Table 3, between 1770 and 1878 residents in Spain at the moment of application predominated (although this percentage diminished gradually throughout the period), while between 1878 and 1907 the situation was reversed; foreign non-residents outnumbered Spanish residents. In any case, these figures indicate that, during the period analysed, a sizable portion of foreigners who applied for protection did it while living in Spain: more than half of all foreign applicants before 1850, practically one quarter between 1851 and 1878, and somewhat less than 4 per cent between 1878 and 1907 (from the relationship between columns b and c of Table 3). Therefore, it seems very clear that before the Restoration - during the beginning of the economic modernization process in Spain - a large part of the transfer of foreign technological information was produced through the immigration of qualified labour, which we know was vital to the development of many sectors such as railways, mining or basic metals; however, during the last quarter of the nineteenth century and the first few years of the twentieth century a radical change took place, caused by the massive arrival of foreign applications 'from abroad', which once again indicates the institutional changes brought about by the Law of 1878, the acceleration of innovations during History of Technology, Volume Twenty-four, 2002

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the second industrial revolution and the process of the internationalization of the patent systems as the origin of the later tendencies of patent registration in the Spanish market. Undoubtedly, within any period, most foreign residents in Spain who used the industrial property system had a direct interest in the productive activity of the country. Among these, French technicians and entrepreneurs stand out, followed by British, German, Italian, Belgian and Swiss citizens,33 which not only falls in with historical knowledge of foreign firms and investments in Spain during the nineteenth century, but will also require, in the future, that researchers pay special attention to the role played by the mobility of European capital and labour in the process of Spanish industrialization. Table 3 Patent applicants' residence: Spain 1770-1907 Spanish residents (a) 1770-1826 1826-1850 1851-1878 1878-1907

% 80.8 63.4 45.5 40.2

Foreign residents (b) % 11.0 20.9 14.5 2.3

Non-residents Patents Total residents (a + b) (c) % 91.8 84.3 59.9 42.4

% 8.2 15.7 40.1 57.6

73* 875* 4,231* 41,711*

* Calculations were made based on 98.7 per cent of patents. The remainder gave no place of residence. Source: See Table 2. Once we separate patents solicited from abroad from those solicited by either foreign or Spanish residents, we can distribute these last two according to geographical locations within Spain for the periods studied, to attempt to clarify some of the questions we raised at the beginning of this work. If, as we have suggested, patents are a valid indicator of investment in new technologies, the increase in their use in national territory would depend, as with any other investment activity, on two fundamental questions: a) the existence of reasonable expectation of profit, which would, directly or indirectly, be a function of the degree of market development and integration and population and income growth and b) the availability of previously accumulated capital. Before 1850 neither of these two factors were present in Spain. There barely had been an initial process of economic modernization focused on the Catalonian cotton sector, some mining and basic metals activity in Andalusia and the Basque Country, and geographically dispersed production of basic consumer goods, with some concentration in urban markets such as Madrid and some areas of the east coast. The railway system had not yet been laid down, ordinary roads were very poor, there were no canals or rivers to be navigated, and the most efficient means of transport was by coastal trading, which made for a fragmented and scarcely integrated national market. History of Technology, Volume Twenty-four, 2002

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Moreover, the basis of construction and expansion of the Spanish financial system was not yet in place and difficulties in obtaining credit and capital was a serious problem. Figure 1 Regional distribution of resident patents: Spain 1770-1907 (one point per patent*)

1826-1850J

1878.1907

Patents registered by residents in American colonies, Ceuta, Melilla and the Canary Isles are not counted. Source: See Table 2. In the context just described, the scarcity of patents was general during the first half of the nineteenth century, although the ones solicited, as seen in the first two maps in Figure 1, tended to be grouped around Madrid and major ports, especially in Catalonia and Andalucia, but also in Valencia and some northern ports. That is, those zones with some possibility of communication, in which the market was slowly becoming integrated, which brought together the first modern industries and had begun to accumulate mercantile capital in previous periods. Such traditional zones History of Technology, Volume Twenty-four, 2002

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as Barcelona, Bilbao, Valencia and southern cities such as Cadiz and Seville (with its important role in American commerce in previous centuries) were the places of residence of many of those who patented new technologies. Madrid was the court, the administrative centre and the headquarters of industrial property management, which undoubtedly influenced its place as the region with a greater number of patents, but we must not forget that it was also the starting point of a radial system of roads, an important market of goods and services, and a centre of financial and bourse activity, with a constant flow of capital. The maps in Figure 1 corresponding to the second half of the nineteenth century and the first few years of the twentieth century, demonstrate the process of progressive concentration of patents in Catalonia, Madrid (constantly losing relative weight), the Basque Country, Valencia, Cantabria, Asturias, Murcia and Andalucia, that is, in the betterconnected regions, with greater access to capital, with a constant increase in industrialization and the highest concentration of population, which is a faithful reflection of market integration. Between 1855 and 1870 the basic structure of the railway system was established following the radial structure of the ordinary roads which joined Madrid to the major ports, this process being finished by the turn of the century;34 also, during the same period, especially after 1876, port infrastructures were improved and expanded, and the merchant fleet was renewed;35 moreover, after 1855, Spanish mixed banking, and the expansion of financial intermediary groups - commercial banks and industrial credit unions - which operated in Madrid and the main coastal cities36 was established. It is not surprising, therefore, that the bulk of patents continued to be solicited in the same regions; that is, in the areas where the process of market development and modern economic expansion had begun - and was maturing - and where large-scale manufacturing and financial economies were developing, which influenced the later founding of major industries and the attraction of greater population and capital. Obviously, the general improvement in transport and industrial activity also generated patent applications from inland areas such as Castille and Aragon, which previously were largely unrepresented, increasing especially in the northern half of the peninsula during the Restoration. But, in any case, the density of the railway and banking networks was deficient outside the main spokes which led from the central hub to the port cities; so, except in Madrid - crossroads for all railway lines, and also a city of industrial development at the end of the nineteenth century, and, above all, of construction and service activities inland, agriculture and processing of raw materials predominated, with little innovation. All this coincides with K. SokolofFs original theory of the influence of market development and the proximity of communication lines on inventive and innovative expansion in the USA,37 which seems, also, to be applicable to Spain's case.

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J. Patricio Sdiz Gonzalez LEGAL STATUS AND SOCIO-PROFESSIONAL ACTIVITY OF APPLICANTS

Research into applicants' legal and professional situation may be necessary in order to understand the functioning of the patent system in Spain. For example, in all the periods studied, technologies were largely registered by individual patentees instead of by two or more inventors or corporate applicants. However, this tendency decreased over time, since at the end of the eighteenth century, 90 per cent of patents belonged to individuals; between 1826 and 1878 this figure dropped to 79 per cent, and between 1878 and 1907 to 72 per cent, while collective and company applications increased slightly. We mention shared patents because, although legally they do not come from a society, we have discovered that sometimes they are related to firms or corporations which prefer patents to be registered with the names of individuals or partners (avoiding, for example, embargo in case of bankruptcy); or, in other cases, we find that this is a preliminary step in forming a company that will later receive the patent. At any rate, collective registrations indicate some type of previous collaboration or association between inventors or manufacturers - although not strictly mercantile - which suggest the necessity of separating them from individual patents and bringing them closer to the corporate world. Table 4 Legal status of patent applicants: Spain 1770-1907 Spaniards

1770-1826 1826-1850 1851-1878 1878-1907

One individual Two or more Corporations individuals (a) (c) (b) % % % 88.1 6.8 5.1 76.6 11.2 12.1 80.4 9.8 9.7 7.6 14.2 78.3

Patents

59 569 1,942 17,115

Foreigners

1770-1826 1826-1850 1851-1878 1878-1907

One individual Two or more Corporations individuals (a) (c) (b) % % % 95.0 5.0 84.1 12.1 3.7 79.0 7.4 13.6 68.0 18.9 13.0

Patents

20 321 2,302 25,197

Source: See Table 2. As seen in Table 4, if patents are broken down by the applicant's nationality in order to analyse his legal status, with minor differences, Spanish and foreign patentees' behaviour was basically the same. Before 1850, the predominance of individuals was total in both groups (even greater among History of Technology, Volume Twenty-four, 2002

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foreign inventors), percentages were similar in shared patents, and corporate applications, especially foreign, were rare.38 The situation remained the same half-way through the nineteenth century, with 80 per cent of individual applications in both groups and collective and corporate patents not far behind. However, between 1878 and 1907 certain changes came about as a result of the increase of non-resident records. Among Spanish nationals, the individual patent predominated at 78.3 per cent, while corporate patents increased to 14 per cent; but among foreigners this tendency was more pronounced, with individual patents dropping to 68 per cent, and collective (13 per cent) and corporate patents (19 per cent) increasing, clearly reflecting the greater role of companies in technological activities in developed countries. But, in general, the legal status of applicants shows a patent system mainly used by individuals, especially in the first three-quarters of the nineteenth century, and up until the twentieth century with Spanish applicants. The predominance of individual patents was general in the rest of Europe and the USA at least until 1850, but in Spain this situation was prolonged, due to the technical level of the country, economic lag and scarcity of qualified workers, which made viable the development and implementation of simple technologies, easy to exploit, already tested abroad and which did not require large investments. Many of these inventions or introductions were the result of personal research and of modifications of existing technology, in small workshops, based on practical experience and direct contact with production processes; a phenomenon which changed in Europe from 1870 on. In the last quarter of the nineteenth century, during the transition to the new manufacturing paradigm of the second industrial revolution, both the complexity of technological systems and the necessity of investment in research and development were progressively increased, which required concentrations of capital only available through societies and firms. This panorama becomes clear if we look at other socio-economic and professional factors pertaining to individual patent applicants, information not always clearly expressed, but which we were able to reconstruct in many cases thanks to direct work with the patent documents. Concretely, we obtained valuable data on the social and professional conditions of over half of the individual applicants for privileges previous to 1826, for 64 per cent from that date until 1850, 76 per cent between 1851 and 1878, and just 25 per cent for individual patents registered between 1878 and 1907, which gives us a sample of 12,330 inventions. We must not lose sight of the fact that the patentee himself mentioned his profession or social affiliation whenever he filled out applications, which in some cases were not explicit enough (such as 'owner', 'capitalist' or 'trader') but after careful study of the more obscure terms,39 we are able to offer a classification into four major groups according to the economic activity of the applicant: a) civil servants, which includes low-level clerks, high-level appointments, lawyers, military officers, university professors or technicians working in an administrative position; b) liberal professionals and qualified technicians, such as lawyers (many), engineers, architects, doctors, pharmaHistory of Technology, Volume Twenty-four, 2002

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cists, physicists, chemists, notaries, directors, designers, professors, etc., self-employed or not, always emphasizing their academic title; c) entrepreneurs, manufacturers, businessmen, master craftsmen, craftsmen and salesmen; and d) others, that is, a heterogeneous group including unskilled and semi-qualified labourers, nobility, students, housewives, etc. Table 5 Socio-professional situation of individual patent applicants: Spain 1770-1907 Spaniards

1770-1826 1826^-1850 1851-1878 1878-1907

Civil servants Liberal Manufacturers, Others professionals, salesmen, qualified craftsmen, technicians etc. (a) (b) (c) (d) % % % % 17.6 17.6 58.8 5.9 15.7 15.4 66.9 2.1 10.1 17.9 69.8 2.3 11.9 27.3 54.6 6.2

Patents

34* 332* 1,528* 5,145*

Foreigners

1770-1826 1826-1850 1851-1878 1878-1907

Civil servants Liberal Manufacturers, Others professionals, salesmen, craftsmen, qualified technicians etc. (a) (d) (b) (c) % % % % 16.7 16.7 66.7 9.2 37.0 51.6 2.2 45.8 5.1 47.3 1.8 6.7 62.2 25.5 5.6

Patents

6* 184* 1,420* 3,681*

* Calculations were made based on an average of 31 per cent of individual patents between 1770 and 1907. The rest indicated no profession. We have expressly excluded corporate patents.40 Source: See Table 2. In general, if we join the results of all the periods studied, the group made up of manufacturers, businessmen, salesmen, craftsmen, etc. is the largest (with almost 50 per cent of all applications), followed by liberal professionals and technicians (38.5 per cent) and administrators (just over 9 per cent), which indicates that the patent system was used primarily by those directly related to production processes, over and above skilled workers. But when we cross these data with those of the applicants' nationality, we see in Table 5 that percentages of the different socio-professional groups vary according to whether they were nationals or foreigners. Aside from the privileges extended before 1826, where the figures are similar regardless History of Technology, Volume Twenty-four, 2002

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of nationality, some interesting differences can be noted during the remaining periods. Among national applicants, group c) predominates with between 54 and 69 per cent of registrations by all sorts of craftsmen, small manufacturers, salesmen and businessmen, even after 1878. However, there were very few qualified technicians represented before 1878 (between 15 and 18 per cent of patents) and among them engineers, who hardly appeared before 1850, although their presence increased from 1851 to 1907 (especially after 1878), becoming the most populous category in group b). In any case, compared to the group of manufacturers, etc., Spanish technicians were always in the minority - although from 1878 to 1907 their presence increased to 27 per cent - which is perfectly understandable in light of the tardiness of specialized training centres (the first industrial engineering schools, for example, were not founded until the second half of the century). With respect to administrators, their presence was also minor, especially after 1850; applicants with scientific or technical qualifications (engineers, university professors, etc.) were also scarce; and with respect to other groups, the presence of wage earners was also very low throughout the periods studied. We return, therefore, to the idea that the national innovation process was backed by small workshops and factories, with simple techniques, modifying or introducing foreign technology, with technical skills based on practical experience more than technical training - learning by doing and learning by using41 - which leads us to insist on the idea of gradual, rather than radical, technological advances, demand-driven by production processes themselves. The use of the patent system by craftsmen, master craftsmen and small manufacturers without scientific qualification but with technical and practical training also occurred in pioneering countries such as the UK, where this type of applicant was common before 1850; however, unlike in Spain, the presence of engineers continued to increase from 1830 on, and above all, in the second half of the nineteenth century, when, together with companies, they took over inventive and innovative activity.42 Some of this can be seen among the foreigners who patented in Spain, as seen in Table 5, since producers, businessmen, etc., made up the majority of patent-seekers before 1850, but engineers and skilled technicians became the most important group after 1878, while administrators and other professionals were scarce. Between 1826 and 1878, the proportion of workers with scientific training was between 37 and 46 per cent of foreign applicants (always more than that of nationals), most of them being engineers, which reveals the technical quality and complexity of the inventions registered, above that of nationals; however, during the same period, among the members of group c), we find that small businessmen, craftsmen, master craftsmen and salesmen predominate (47-51 per cent), insisting on the role of the practical training of this group in the transfer of technology in the early stages of European industrialization. Between 1878 and 1907 this model clearly changed; although the presence of professionals from group c) with Spanish patents was still significant (25.5 per cent), it decreased in proportion to the gains made by qualified History of Technology, Volume Twenty-four, 2002

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workers (especially engineers), which grew to 62.2 per cent. Hence, craftsmen and small manufacturers were no longer predominant, being replaced by technicians and scientists, not only asking for patents themselves, but also working in the implementation departments of large manufacturing and business corporations, who appropriated the results and were the owners of the patents. Once again we see here the innovation model of the second industrial revolution. PATENTS AND STRUCTURE OF THE SPANISH ECONOMY One of the problems with using patent series is their sectorial classification in order to trace the distribution of inventive and innovative activity within a specific economy. The usual approach, originated by J. Schmookler, consists of grouping the inventions according to the sector in which the new technology makes its impact; that is, where productivity would tend to increase with the implementation of that invention. 43 However, as Schmookler himself immediately realized, and other authors have continued to point out,44 the fundamental problem is the inability to classify certain inventions, since they impact several industries or sectors; for example, advances in the steam engine. In spite of these problems, we have decided to classify the Spanish patents using the same system, but combining it with the technical criteria used in the International Patent Classification,45 since Spanish documents have not been officially classified for dates previous to 1968. On the one hand, we have had the advantage of working directly with the descriptions and plans of the inventions, and, on the other, the disadvantage of having lesser technical knowledge than engineers specialized in classifying patents. However, before 1880, registered technologies were sufficiently available and simple enough to guarantee a high level of quality in this classification, and although after that date the technologies became more complicated, a general approach towards large technical and industrial groups, without the minute detail pursued by those examiners, has facilitated our work.46 We have consistently attempted to assign each registered technology to the sector most likely to use it, but when it becomes clear that it has a multisectorial application, we have classified it in the generic group of machinery and equipment. That is, if a patent supposes an advance in a steam engine adapted to navigation or railways, we classify it in those sectors, but if it is a general improvement valid for any and all implementations, we include it in machinery and equipment, independently of the fact that all these inventions belong to the same technological section of the international classification WIPO. We are well aware that it is not a perfect procedure but also that, by using it, we can, at least, make our first observations on the sectorial structure of investment in new technologies in Spain.

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Table 6 Distribution of patent applications according to economic activities: Spain 1770-1907 Sectors

Machinery and equipment Services Textile Food, beverages and tobacco Chemical Basic metals Electricity Construction Paper and graphic arts Railway Arms industry Gas and lighting Non-rail transport Agriculture and cattle farming Sea transport and ports Mining and coal Lumber industry Communications Aeronautics TOTAL PATENTS

17701826

18261850

18511878

% 15.2 7.6 10.1 21.5 19.0 3.8 3.8 2.5 6.3 3.8 1.3 5.1 79

% 10.9 7.1 14.5 15.4 11.1 11.9 0.1 6.0 4.5 1.6 0.5 2.6 2.1 1.1 3.5 4.2 2.5 0.3 0.0 888*

% 13.4 9.4 12.7 11.6 8.5 8.2 0.5 5.4 4.1 4.9 3.7 4.2 1.9 1.6 2.3 4.2 1.8 1.2 0.3 4,229*

18781907

17701907

% % 19.2 18.5 12.9 13.4 12.1 12.0 9.9 10.2 7.1 6.8 5.4 5.0 4.7 5.2 4.0 3.8 4.0 3.9 3.7 3.6 3.6 3.7 3.2 3.1 2.7 2.8 2.0 1.9 1.9 1.8 1.6 1.3 1.2 1.1 1.1 1.1 0.2 0.2 42,103* 47,299*

* The calculations are based on 99.5 per cent of the patents studied. The remainder was unclassifiable. Source: See Table 2. As seen in Table 6, throughout the period studied, more than 80 per cent of the patents are concentrated in ten activity sectors, which, with few exceptions and changes in order, are basically the same. During the nineteenth century, therefore, a common pattern of investment in new technology is maintained, beyond obvious alterations due to the nature of technique itself or to the process of economic growth. So, the objects patented pointed to leading sectors - technologically speaking - which caused no surprise during a modernization process, even in such an underdeveloped country as Spain. That is the case of the textile industry, with an average of 12 per cent of related inventions, situated from the beginning of the nineteenth century firmly in the top two or three positions; the basic metals industry with 5.4 per cent but even greater before 1878; or even the machinery and mechanical construction industries, evidently linked to the latter and progressively increasing in participation, especially during the second industrial revolution, becoming the most important (18 per cent). However, it is significant that many patents refer to activities which, theoretically, are not normally considered innovative during the early stages of industrialization, such as advances in the services sector,47 whose History of Technology, Volume Twenty-four, 2002

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presence increased constantly to make up almost 13 per cent of all patents; innovations in the food, beverage and tobacco industries,48 which while losing points throughout the century, stabilized at 10.2 per cent; discoveries related to chemical production,49 which descended slowly to an average of 7.1 per cent; or even patents connected to the construction sector50 or the paper and graphic arts industry, with 4 per cent each. We know that the cotton textile industry, basically Catalonian, began its expansion and mechanization very early, rapidly organizing factory production and becoming the most innovative and advanced industry in the country.51 It is also well known that the basic metals industry went through its first modernization period before 1850 in Andalusia, and after this date, in the north, especially in the Basque Country with a strong specialization in the sector after 1881.52 The development of the machinery and equipment industry was much slower during the first threequarters of the nineteenth century and was linked to the existence of repair shops for relatively simple machinery (such as water pumps, primary motors, steam engines, boilers, furnaces, transmissions, turbines, basic machine-tools, etc.) and located around large cities such as Madrid, Barcelona, Bilbao, Valencia and Zaragoza, where between 1880 and 1930 several large factories and companies were founded.53 However, the food, construction, basic services and chemical (before 1875) sectors were more dispersed across the Spanish geography - although always connected to Madrid and the principal port cities - with smaller production units often somewhere between mass-produced and handcrafted - and with uncomplicated techniques. In spite of this, and less well known to historians, they weighed heavily in Spanish economic growth.54 This phenomenon is not exclusive to undeveloped countries, since, for example in the UK, between 1711 and 1850, some researchers have found patented inventive activity not normally associated with technological change,55 although in the case of latecomers, this industrialization or protoindustrialization spread across non-leading sectors could be much more important for their model of growth and modernization than it was in pioneering nations. Finally, we would like to point out that inventive activity in other areas was especially relevant in specific periods, such as the 5 per cent of railway patents between 1851 and 1878 demonstrates, coinciding with the laying down of the tracks; or the 4.2 per cent corresponding to mining, coal and the gas industries in the moment of greater activity in these sectors. It is probable that some sectors, in which technology could be a fundamental factor, such as railways and mining, were under-represented in the patent system, which could be explained by the especial conditions surrounding its expansion since, in both cases, governmental permission was necessary in order to implement the exploitation, they required large capital investments (mostly foreign) and were totally dependent on foreign innovation. In this context of limiting any competition, it is not surprising that much machinery was imported directly without being registered in Spain.56 Moreover, patents in the electric industry were significant during the last quarter of the nineteenth century (5.2 per cent), coinciding with the History of Technology, Volume Twenty-four, 2002

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growth of the new energy sector during the second European industrial revolution, in which, in general, new technological trajectories were established in many industries and sectors, such as the manufacture of machinery and equipment, where ever more complex machine-tools were being produced; in the birth of the great chemical industry, with certain important factories founded in Spain such as the production of explosives, caustic soda, etc;57 in activities tied to the services sector with new industrial branches, such as photography; in highway transport, with the development of the internal combustion engine; or in the arms industry with successive inventions which in turn opened up new paths of technological development. On the other hand, patents related to agriculture, fishing, cattle farming, lumber, communications, navigation and transport systems in general, have always been scarce. Table 7 Percentages of foreign technology (foreign patents plus Spanish introduction patents) in different economic sectors: Spain, 1770-1907 Sectors

Communications Basic metals Arms industry Electricity Railway Mining and coal Chemical Non-rail transport Gas and lighting Machinery and equipment Sea transport and ports Lumber industry Food, beverage and tobacco Textile Paper and graphic arts Construction Aeronautics Services Agriculture and cattle farming TOTAL PATENTS

1770-1878 1878-1907 1770-1907 (a) (c) (b)

(b-a)

% 83.8 83.9 81.9 78.2 77.3 75.0 74.7 74.3 70.0 71.6 70.3 64.9 65.0 62.9 59.4 56.8 58.6 52.9 50.2 67.7

% 9.3 9.8 13.1 -21.8 -5.0 2.0 11.8 21.3 -7.9 11.5 8.2 -3.7 3.8 -5.1 6.6 -4.9 30.0 4.0 7.3 3.7

% 74.5 74.1 68.8 100.0 82.3 73.0 62.9 53.0 77.9 60.1 62.1 68.6 61.2 68.0 52.8 61.7 28.6 48.9 42.9 64.0

% 82.8 82.2 80.7 78.4 77.9 74.4 73.0 72.6 71.1 70.8 69.1 65.6 64.5 63.5 58.6 57.5 54.5 52.6 49.5 67.3

Source: See Table 2. Even more interesting than the distribution of patents is to discover how the presence of foreign technology was structured in the different sectors.58 By skimming Table 7, we can see that dependence on foreign innovations was well above average in the basic, heavy sectors - with more scientific or technical complexity - and those which required heavier investments in research and development, such as metals, railway, arms, History of Technology, Volume Twenty-four, 2002

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mining, energy (gas and electricity), communications, or (after 1878) the chemical industry, machinery and equipment or shipping. On the other hand, in sectors such as consumer goods, technologically simpler and requiring less capital, the percentages of inventions and national technical developments were greater, such as agriculture and animal husbandry, food industry, services sector, construction, paper, lumber and even the textile industry. Moreover, we observe that in the last quarter of the century, dependence on foreign technology increased considerably in almost all sectors, especially heavy industry, which once again is a clear indication of technological expansion during the second industrial revolution and of the massive arrival of patent applications from abroad. In some industries, such as chemicals or machinery and equipment, the national innovation processes were above average before the Restoration, due, as already explained, to the fact that much production was carried out in small cottage industries or workshops throughout the country with simple technologies; but the path towards corporate structures and more complex production, as a consequence of the new technological trajectories opened up during the last quarter of the nineteenth century, increased its dependence. Among the sectors which experienced a slight decrease in foreign technology after 1878 (although without completely losing their dependence) were railways, in which the protectionist turn, substituting imports for national production, began to have its effects, and industries such as gas or textiles, more closely tied to the first industrial revolution. In summary, we can deduce that there was a dual technological structure, with national invention and innovation concentrated in the consumer goods sector, less capital-intensive and with less-complex technologies; while the large infrastructures and intermediate sectors depended almost completely on the transfer of foreign technology. EFFECTIVENESS AND DURATION OF PATENTS The last point to be analysed in this study is the obligatory implementation of patents and the expiration dates of technology monopolies, both of which could reveal qualitative information on the efficiency of the system in promoting innovation and its real impact on the economy. As seen in Table 1, Spanish legislation has always stated that patented inventions must be exploited, that is, applied to the production system, or that patent would expire. The patentee had one year to put it into practice between 1826 and 1878, two between 1878 and 1902, and three years between 1902 and 1907, after which they would lose the monopoly, and the technical information would belong to the public domain. Between 1826 and 1835 the Administration did not consistently enforce this requirement, but in the mid-1830s, then even more between 1849 and 1878, the government intervened actively to block invention and introduction patents which were left unimplemented. Once the patentee turned in his application, the Administration sent a delegate with a public clerk who witnessed the practice, and later reported the results, which were submitted to the Reales History of Technology, Volume Twenty-four, 2002

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Juntas de Agricultura, Industria y Comercio, a regional institution, or to the Real Conservatorio de Artesy Oficios (the Patent Office) in Madrid; organizations which, in addition, could commission experts to ensure that patents were being exploited. The controls were rigorous, requiring national production, and not just importing the technology or the product, although sometimes it was sufficient proof to see the invention functioning, especially when it was technology which could not be manufactured in Spain. In any case, a detailed study of the implementation files demonstrates that documentation in this period was very reliable, enough to give us a clear impression of the degree to which patents led to innovation processes, regardless of whether they were based on imported techniques, whether they were later diffused, or whether or not they had a great impact on the economy.59 The laws of 1878 and 1902 continued to require proof of exploitation, but the justification system was simplified. First, the Conservatory delegated an engineer to test the implementation of the patent, and later any industrial engineer contracted by the patentee. In both cases, posting the certificate, without notarization or later examinations, was sufficient for the renovation of the patent. That did not necessarily mean that the requirements were easier, but the analysis of documentation shows that, in many cases, engineers' certificates were very vague, referring to 'sufficient means' for the exploitation of a technology or the same workshops were mentioned time and again in relation to the implementation of the inventions, which indicates the relaxation of the system. However, there are many cases of truthful rendering of correct practices, and after 1878, expiration due to lack of implementation continued to be the main cause, which means that, to a certain degree, exploitation requirements continued to function as an important filter. Once these requirements were met, the duration of the patent becomes the other important consideration in assessing the economic impact of the patent, supposing that its greater length and cost was a consequence of reasonable expectation of profit from the innovation which made it attractive to continue fighting off competitors. This type of information can be obtained from the study of initial and renovation fees paid by the applicant to maintain exclusives rights, which as previously explained, were paid in advance between 1826 and 1878 after choosing the expiration date (5, 10 or 15 years), and between 1878 and 1907 were paid annually for a maximum of 20 years (except for patents of introduction with a limit of five years). Therefore, between 1826 and 1878, confidence in the innovation's potential had to be calculated before taking out the patent, which produces a certain distortion, although we suppose that, since the five-year invention patents could be renewed for another five years, applying directly for a 10- or 15-year patent indicates more confidence in the invention's possibilities. After 1878, however, it was much easier for patentees to abandon an unprofitable invention simply by not paying the fee, which we suppose occurred when the monopoly costs were greater than profits obtained. History of Technology, Volume Twenty-four, 2002

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J. Patricio Sdiz Gonzalez Table 8 Patent implementation and monopoly duration: Spain 1826-1907 1826-1878 PATENTS

Imple- Non- Effective- Duration Duration Persistence mented imple- ness 5 years > 5 years index* mented index* % % % %

AVERAGE FOR SPAIN

25.6

74.4

1.00

90.8

9.2

1.00

Nationals Foreigners

34.7 16.5

65.3 83.5

1.36 0.64

89.1 92.6

10.9 7.4

1.18 0.80

Invention Introduction

23.3 33.4

76.7 66.7

0.91 1.30

88.2 100.0

11.8 0.0

1.28 0.00

Residents Non-residents

33.0 12.6

67.0 87.4

1.29 0.49

89.3 93.5

10.7 6.5

1.16 0.71

Individuals Two or more individuals Corporations

24.6 22.9 39.1

75.4 77.1 60.9

0.96 0.89 1.53

90.9 91.6 88.4

9.1 8.4 11.6

0.99 0.91 1.26

Civil servants Technicians, etc. Manufacturers, etc.

26.6 23.4 30.9

73.4 76.6 69.1

1.04 0.91 1.21

89.8 86.9 90.6

10.2 13.1 9.4

1.11 1.42 1.02

Machinery/Equipment Services Textile Food, beverage, etc. Chemical Basic metals Electricity Construction Paper and graphic arts Railway

23.3 23.3 35.7 25.5 28.6 26.2 9.1 31.5 24.3 12.0

76.7 46.7 64.3 74.5 71.4 73.8 90.9 68.5 75.7 88.0

0.91 0.91 1.39 1.00 1.12 1.02 0.36 1.23 0.95 0.47

89.3 94.0 92.5 88.4 90.6 89.0 100.0 88.0 90.2 92.6

10.7 6.0 7.8 11.6 9.4 11.0 0.0 12.0 9.8 7.4

1.16 0.65 0.85 1.26 1.02 1.20 0.00 1.30 1.07 0.80

1878-1907 PATENTS

Imple- Non- Effective-Duration Duration Persistence mented imple- ness 5 years >5 years index* mented index* % % % %

AVERAGE FOR SPAIN

28.3

71.7

1.00

87.8

12.2

1.00

Nationals Foreigners

22.0 32.7

78.0 67.3

0.78 1.16

93.0 84.3

7.0 15.7

0.57 1.29

Invention Introduction

28.0 28.3

72.0 71.7

0.99 1.00

85.4 100.0

14.6 0.0

1.20 0.00 cont.

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1878-1907 (com.) PATENTS

Imple- Non- Effective-Duration Duration Persistence mented imple- ness 5 years >5 years index* mented index* % % % %

Residents Non-residents

22.4 32.9

77.6 67.1

0.79 1.16

92.8 84.1

7.2 15.9

0.59 1.30

Individuals Two or more individuals Corporations

25.8 26.3 40.2

74.2 73.7 59.8

0.91 0.93 1.42

89.1 89.1 81.8

10.9 10.9 18.2

0.89 0.89 1.49

Civil servants Technicians, etc. Manufacturers, etc.

24.3 32.9 31.5

75.7 67.1 68.5

0.86 1.16 1.11

89.8 84.1 86.8

10.2 15.9 13.2

0.84 1.30 1.08

Machinery/Equipment Services Textile Food, beverage, etc. Chemical Basic metals Electricity Construction Paper and graphic arts Railway

28.3 19.7 28.1 28.1 33.2 35.5 34.7 27.7 26.8 29.9

71.7 80.3 71.9 71.9 66.8 64.5 65.3 72.3 73.2 70.1

1.00 0.70 0.99 0.99 1.17 1.25 1.23 0.98 0.95 1.06

87.2 92.6 89.2 88.5 85.9 84.3 85.2 89.8 88.8 86.0

12.8 7.4 10.8 11.5 14.1 15.7 14.8 10.2 11.2 14.0

1.05 0.61 0.89 0.94 1.16 1.29 1.21 0.84 0.92 1.15

* The effectiveness index is the quotient of the percentage of patents implemented in each category above the national average. So, the persistence index is the quotient of the percentage of patents greater thanfiveyears in each category above the national average. Source: See Table 2. As seen in Table 8, between 1826 and 1907 only 25-8 per cent of registered patents were implemented, and although that does not mean that those which were not approved did not eventually take part in innovative processes, we can affirm that 75 per cent of registered inventions lost their monopoly rights within three years, transferring that technical information to the public domain. Moreover, if we observe duration data for the entire period studied, we see that approximately 88-91 per cent of all patents had expired within five years; that is, only 10 per cent of patents were maintained longer than five years, and theoretically, had a consistent impact on the economy. This also means that many 'officially' implemented patents were abandoned after two or three years, probably due to lack of profits or just because they had not become real innovations. In general, only 4 per cent lasted 10 years, and less than 2 per cent lasted an average of

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15 years during the nineteenth century, which appears to indicate that the real economic impact of patents in Spain was, at most, short-term. Crossing these data with the different categories analysed throughout the work in an attempt to discover which factors could influence the implementation and duration of patents, we would like to point out, first, the existence of two clearly different periods in the use and functioning of the system. Through the analysis of the 'effectiveness' and 'persistence' indexes found in Table 8, we see that during the first three-quarters of the nineteenth century, national patents were implemented more often than foreign ones, those of residents more often than non-residents, introduction patents were more successful than invention patents, enterprises more than individuals, and manufacturers and craftsmen more than any other profession. With respect to the economic sectors with greater patent implementation before 1878, consumer goods, such as the textile industry, construction, food, and simple chemical production appeared to be the most successful. The ideal applicant, therefore, would be a Spanish manufacturer, company or craftsman, in charge of an industrial shop dedicated to producing final products, for example textiles, in direct contact with the production system, cautiously applying for introduction patents based on previously tested foreign technologies, living in Catalonia or another well-connected port city. Similar conditions prevail when the patent is extended beyond five years, with the obvious exception of those with the built-in time-limit. However, worth noting is that technicians, engineers and qualified professionals tended to solicit long-term patents, undoubtedly demonstrating extreme persistence and confidence in their inventions as opposed to the below-average effectiveness index assigned to them and the maximizing of costs and profits by craftsmen and entrepreneurs. In those sectors where patents has a longer-than-average duration, construction and the food industry stand out, together with heavier industries, such as basic metals and machinery and equipment - in which the type of technology employed would take time to write off60 - and patents were more short-term in the textile industry or the services sector. But if we focus on the last quarter of the nineteenth century and the beginning of the twentieth century, the most influential factors leading to implementation or in the duration of the patent were substantially different from earlier periods. So, for example, after 1878, foreign patentees were more effective than domestic ones, and non-residents' patentees more than resident ones. Companies continued being more successful with innovations than individuals, but engineers and technicians had increased their effectiveness even surpassing the level reached by manufacturers and entrepreneurs. Additionally, the sectors with greater success in obtaining innovations from patents were those of heavy industry, marked by the technologies of the second industrial revolution, such as basic metals, electricity, railways, chemicals or machinery and equipment, with consumer industries falling below average. Now the most successful applicant in attaining patents has become an industrial firm, a nonresident foreign engineer or a manufacturer, who sought patents of History of Technology, Volume Twenty-four, 2002

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invention for complex technological advances in basic industries. Moreover, the factors cited were the same for the longer-than-average protections. At the end of the nineteenth century, therefore, inventive and innovate activity in the Spanish patent system had acquired features typical of the second industrial revolution model, with greater participation in an international superstructure closely linked to the recently emerging technological paradigm, in which new technological systems were forged and domestic impetus was at a minimum. CONCLUSION This study has attempted to carry out an in-depth analysis of the development of inventive and innovative activity in Spain during the first industrialization process in the country, using information found in the patent system. It is well known that this is an imperfect indicator and entails several problems, but due, among other things, to its historical availability, we consider it to be an interesting source for tracing the direction and characteristics of investment in new technologies. To accomplish this, we studied the institutional and legal considerations surrounding industrial property, where we observed that Spain organized a hybrid system of protection which maintained, for almost two centuries, the early French tradition. We call this hybrid because, although it protected original inventors, since it respected priority rights, issued long-term patents and prosecuted fraud, it also promoted the recording and implementation of third-party technologies in the country through patents of introduction, the concession without a technical or novelty examination and the obligation to exploit the invention within national territory. That is, there was an attempt to combine respect for intellectual property with the practical policy of facilitating innovation processes in order to favour industrial development and compensating a backward economy, which was not very different from other follower or latecomer countries for most of the nineteenth century. So in the same way that protectionism was a fundamental growth strategy for many countries, permissiveness in allowing the introduction and imitation of foreign technologies could also have played an important role in the processes of modernization of several countries, while economic theory praises, at the same time, the benefits of free trade and those of intellectual property rights. The detailed analysis of statistics and documentation of patents between 1770 and 1907 permits the characterization of the system and points out, above all, the strong and increasing dependence on foreign technology, which coincides with the general impression of historians specialized in innovation processes in Spain. We see that the direct participation of foreign applicants between 1851 and 1878 was over 50 per cent and continued to increase during the final quarter of the nineteenth century, which, together with the existence of Spanish patents of introduction, was an imposing percentage of foreign technologies, close to 70 per cent. Moreover, individual petitions were more numerous than those of History of Technology, Volume Twenty-four, 2002

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companies and firms, and most applicants were master craftsmen, craftsmen, manufacturers and businessmen in charge of small-scale productions, while qualified professionals and engineers were scarce before 1878 (although they increased their participation after that year), which in general indicates fairly simple technologies and demand-driven incremental innovations. On the other hand, on examining the places of residence of resident inventors (some of which were foreigners before 1878), we observe inventive and innovative activity closely related to the process of formation and integration of the Spanish market, confirming K. Sokoloff's classic hypothesis, and, once again, the influence of demand forces. The distribution of patents according to different economic sectors reinforces this impression, since the principal users of the system, together with industries normally associated with processes of technical changes (textile, metal, etc.), were a large group of productive activities related to the food, beverage and tobacco industries, the services sector or construction, closely related to consumption and responding quickly to market conditions. It was in these sectors that domestic inventive activity was concentrated, while foreign presence was close to 80 per cent in infrastructure and heavy industry. However, this general impression of the patent system must be qualified. Throughout the study we have found interesting differences in the functioning and utilization of industrial property in the first three-quarters of the nineteenth century, in contrast to the final period. So, for example, between 1878 and 1907, the most outstanding characteristics began to crystallize - see the presence of non-resident foreigners in the system - while others were revived and transformed, such as the important increase in participation of companies and engineers as recipients of patents or the tremendous advances with respect to machinery and equipment industries. This avalanche of applications by non-resident foreigners was due, in addition to the demand forces of the Spanish market and to institutional changes, to international patent strategies in the global technology market, which, to a degree, could clearly be thought of as a supply-side conditioned factor, at least in a scientifically backward country at the moment of the birth of a new technological paradigm. The analysis of data with respect to the implementation and duration of patents confirms the duality of the system before and after 1878, pointing out that during the first three-quarters of the century, the most effective and persistent applicants were domestic, residents, craftsmen or manufacturers who solicited consumer-related patents of introduction, while between 1878 and 1907, just the opposite occurred; that is, nonresident foreigners, engineers and technicians were more effective in implementing the patents and retaining the monopoly of complex technologies in heavy industry. The firms were always more effective and persistent than individual applicants. Although demand forces and incremental innovations from learning by doing - or using - governed the patent system before 1878, after that date, we must take into account radical patents that opened new technological trajectories (electricity, combustion engines, etc.) and foreign-induced supply and availability of techniques and energies. History of Technology, Volume Twenty-four, 2002

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Notes and References 1. J. A. Schumpeter, Theory of Economic Development: An Inquiry Into Profits, Capital, Cre Interest and the Business Cycle (Cambridge, Massachusetts, 1911) andJ.A. Schumpeter, Business Cycles. A Theoretical, Historical and Statistical Analysis of the Capitalist Process (New York, See also S.S. Kuznets, Secular Movements in Production and Prices. Their Nature and Their Bear Upon Cyclical Fluctuations (Boston, 1930) and S.S. Kuznets, 'Equilibrium Economics and Business Cycle Theory', Quarterly Journal of Economics, 1930, 44: 381-415. 2. J. Schmookler, 'Economic Sources of Inventive Activity', Journal of Economic History, 1962, 22, 1: 1-20 and J. Schmookler, Invention and Economic Growth (Cambridge, Massachusetts, 1966). 3. N. Rosenberg, 'The directions of Technological Change: Inducement Mechanisms and Focusing Devices', in N. Rosenberg (ed), Perspectives on Technology (Cambridge, 1976), ch. 6, and N. Rosenberg, Inside the Black Box: Technology and Economics (Cambridge, 1982). See also J. Mokyr, 'Demand versus Supply in the Industrial Revolution', Journal ofEconomic History, 1977, 37, 4: 981-1008. 4. So, for example, K. Arrow dealt with the subject of inventive and innovative activity as a special field of the economics of information [see 'Economic Welfare and the Allocation of Resources for Invention' in R.R. Nelson (ed), The Rate and Direction of Inventive Activity (New York, 1962), 609-25], this being discussed by K. Pavitt in his explanation of the influence of know-how and of the apprenticeship processes ['Technology Transfer among the Industrially Advanced Countries: An Overview', in N. Rosenberg and C. Frischtadk (eds), International Technology Transfer: Concepts, Measures and Comparisons (New York, 1985)]. S. Cheung approached this subject with a panoramic view of the economics of property rights developed by R. Coase, A. Alchian or H. Demsetz - and on the institutional incentives for invention, clearly explained by D. North [see S. Cheung, 'Property Rights in Trade Secrets', Economic Inquiry, 1982, 20: 40-52]. Others, such as P. Dasgupta, have used the possibilities of game theory to reflect on the issue [see 'Patents, Priority and Imitation or the Economics of Races and Waiting Games', Economic Journal, 1988, 98: 66-80]; while R. Nelson, S. Winter and P. David, among others, have situated the problem of technological change within the central focus of the analysis of more recent economic tendencies, such as evolutionary economics or the theories of path-dependence [see R.R. Nelson and S.G. Winter, An Evolutionary Theory of Economic Change (Cambridge, Massachusetts, 1982) and P.A. David, 'Clio and the Economics of QWERTY, American Economic Review, 1985, 75, 2: 459-67]. 5. Only some general references: H. Habakkuk, American and British Technology in the 19th Century (Cambridge, 1962); D.S. Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (Cambridge, Massachusetts, 1969); W.D. Nordhaus, Invention, Growth and Welfare (Cambridge, 1969); N. Rosenberg, Technology and American Economic Growth (New York, 1972); P.A. David, Technical Choice Innovation and Economic Growth: Essays on British and American Experience in the Nineteenth (London, New York, 1975); P. Higonnet, D.S. Landes and H. Rosovsky (eds), Favourites of Fortune. Technology, Growth, and Economic Development since the Industrial Revolution (Cam Massachusetts, 1991); P. Mathias and J. Davis (eds), Innovation and Technology in Europe. From the Eighteenth Century to the Present Day (Oxford and Cambridge, Massachusetts, 1991); G.N. Von Tunzelmann, Technology and Industrial Progress. The Foundations of Economic Grow (Aldershot, 1995); I.E. Inkster, Technology and Industrialization: Historical Case Studies and International Perspectives (Aldershot, 1998); M. Berg and K. Bruland (eds), Technological Revolutions in Europe: Historical Perspectives (Cheltenham, 1998); and J. Cantwell, The History of Technological Development in Europe and the United States (Oxford, forthcoming). 6. For example, some, such as K. Sokoloff, demonstrated the close relationship between inventive and innovative activity and the formation and integration of markets, which, to a certain degree, confirms the idea that economic growth itself accelerates the process [see 'Inventive Activity in Early Industrial America: Evidence from Patent Records (1790-1846)', Journal of Economic History, 1988, 48, 4: 363-78]. Others, such as G. Von Tunzelmann, have tried to point out the weaknesses in Schmookler's thesis with his own data [G.N. Von Tunzelmann, 'Technology Generation, Technology Use and Economic Growth', European Review of Economic History, 2000, 4: 121-46]; and others, without denying the importance of demand, have insisted, from Neo-Schumpeterian and evolutionary standpoints, on aspects related to technology supply and innovation cycles [see B. Andersen, Technological Change and History of Technology, Volume Twenty-four, 2002

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the Evolution of Corporate Innovation. The Structure of Patenting, 1880-1990 (Cheltenham Northampton, 2001). 7. The use of R+D expenditure as an index presents many different problems. On the one hand, it is only available in very recent times and it represents only a part of the efforts in technical development. On the other hand, it is difficult to calculate the investments of small enterprises and, moreover, R+D expenditure may not directly lead to innovation. See W.M. Cohen and D.A. Levinthal, 'Innovation and Learning: The Two Faces of R&D', Economic Journal, 1989, 99: 569-96. 8. This system emerges as a consequence of the works of R.M. Solow, 'Technical Change and the Aggregate Production Function', Review ofEconomics and Statistics, 1957, 39: 312-20 on changes in the aggregate production function. This has been questioned to a great extent by evolutionary economists, by proving that technology does not always go along with productivity: See PA. David, 'The Dynamo and the Computer: An Historical Perspective on the Modern Productivity Paradox', American Economic Review Proceedings, 1990, 80: 355-61 and Von Tunzelmann, 'Technology Generation...', (2000). 9. Apart from the lack of historical sources on the matter, bibliometric data coming from scientific publications are not really a good indicator, as they have more to do with advances in basic science than with technology. See Andersen, Technological Change ..., (2001), 20. 10. We canfindan original example in P. Moser, How Do Patents Laws Influence Innovation ? Evidence from Nineteenth-Century World Fairs, University of California, http://elsa.berkeley.edu/ -eichengr/PetraMoser.pdf (Berkeley, 2001). However, there are not many data of this type from a historical point of view. 11. It is true that the use of patents has created controversy [see Z. Griliches, 'Patent Statistics as Economic Indicators', Journal of Economic Literature, 1990, 28: 1661-707], since, in the first place, their study only reflects a portion of innovation while not capturing what is not registered (whether the results of national inventive activity, or technology imports or of changes in organization and of know-how that cannot be patented); secondly, a significant percentage of patents have never been exploited nor become real innovations in the economy, which complicates their role as a technological indicator; and,finally,the institutional diversity of patent laws has made international comparisons more difficult. However, patents have certain advantages over other indicators: there are continuous historical series which go back to the beginning of the nineteenth century in several countries - many of them could be grouped into 'legal families' with similar institutional characteristics [see J. Lerner, '150 Years of Patent Protection', NBER Working Paper Series, 2000, 7478; and J. Lerner, '150 Years of Patent Office Practice', NBER Working Paper Series, 2000, 7477] - patents are, in general, a good indicator of investment in new technologies within a specific economy, whether or not they are successful or the registered object becomes an innovation or is never exploited (the same occurs with capital investments) [see J.P. Saiz, Invencion, patentes e innovacion en laEspana contempordnea (Madrid, 1999), 100-103]; patents are a gauge of the role that 'human effort' plays in the development of certain technologies [see G.N. Von Tunzelmann and E. Anderson, 'Technologies and Skills in Long-run Perspective', Mimeo, SPRU/IDS (Sussex, 1999)]; patents are also a partial technological indicator, which, for many, is superior to any other types of data [see Andersen, Technological Change..., (2001), ch. II]; andfinally,patents have given rise to a very rich historical documentation which could supply complementary panoramic views of the problem of innovation and economic growth if it is studied deeply. Therefore, in spite of discordant voices [see, for example, T. Griffiths, PA. Hunt and P.K O'Brien, 'Inventive Activity in the British Textile Industry, 1700-1800', Journal of Economic History, 1992, 52, 4: 881-906, and P.K O'Brien, T. Griffiths and PA. Hunt, 'There Is Nothing Outside the Text and There Is No Safety in Numbers: A Reply to Sullivan', Journal of Economic History, 1995, 55, 3: 671-2] it is not surprising that there has been much research on patent systems and on what they add to economic history. Apart from the above-mentioned works of B. Andersen; E. Anderson; I.E. Inkster; J.P. Saiz; J. Schmookler; KL. Sokoloff and G.N. Von Tunzelmann, see, on United Kingdom, H. Dutton, The Patent System and Inventive Activity during the Industrial Revolution 1750-1852 (Manchester, 1984); C. Macleod, Inventing the Industrial Revolution. The English Patent System, 1660-1800 (Cambridge, 1988); C. Macleod, 'The Paradoxes of Patenting: Invention and Its diffusion in 18th- and 19th-century Britain, France, and North America', Technology and Culture, 1991, 32, 4: 885-910; C. Macleod, 'Strategies for Innovation: The Diffusion of New Technology in Nineteenth-Century British Industry', Economic History Review, 1992, 45, 2: 285-307; C. Macleod, 'Concepts of Invention and the Patent Controversy in History of Technology, Volume Twenty-four, 2002

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Victorian Britain', in R. Fox (ed), Technological Change: Methods and Themes in the History of Technology (Amsterdam, 1996); C. Macleod, 'Negotiating the Rewards of Invention: The ShopFloor Inventor in Victorian Britain', Business History, 1999, 41, 2: 17-36; RJ. Sullivan, 'The Revolution of Ideas: Widespread Patenting and Invention during the English Industrial Revolution', Journal ofEconomic History, 1990, 50, 2: 349-62, and RJ. Sullivan, 'Patent Counts and Textile Invention: A comment on Griffiths, Hunt and O'Brien', Journal ofEconomic History, 1995, 55, 3: 666-70; on USA, W.H. Phillips, 'Patent Growth in the Old Dominion: The Impact of Railroad Integration before 1880', Journal of Economic History, 1992, 52, 2: 389-400; B.Z. Khan and L.K. Sokoloff, 'Patent Institutions, Industrial Organization and Early Technological Change: Britain and the United States, 1790-1850' in Berg and Bruland (eds), Technological Revolutions..., (1998); B.Z. Khan, 'Property Rights and Patent Litigation in Early Nineteenth Century America', Journal ofEconomic History, 1995, 55, 1: 58-97; B.Z. Khan and K.L. Sokoloff, 'Schemes of Practical Utility: Entrepreneurship and Innovation Among "Great Inventors" in the United States, 1790-1865', Journal of Economic History, 1993, 58: 289-307; N.R. Lamoreaux and K.L. Sokoloff, 'Inventors, Firms, and the Market for Technology in the Late Nineteenth and Early Twentieth Centuries', in N.R. Lamoreaux et al. (eds), Learning by doing in Markets, Firms and Countries (Chicago, 1999), and K.L. Sokoloff and B.Z. Khan, 'The Democratization of Invention During Early Industrialization: Evidence from the United States, 1790-1846', Journal ofEconomic History, 1990, 50, 2: 363-78; on France, Hilaire-Perez, 'Invention and the State in 18th-Century France', Technology and Culture, 1991, 32, 4: 911-31; on Norway, B.L. Basberg, 'Foreign Patenting in the U.S. as a Technology Indicator. The Case of Norway', Research Policy, 1983, 12: 227-37, and B.L. Basberg, 'Patent Statistics and the Measurement of Technological Change. An Assessment of the Norwegian Patent Data, 1840-1980', World Patent Information, 1984, 6, 4:158-64; on Spain, J.R Saiz, Propiedad industrial y revolucion liberal. Historia del sistema espanol de patentes (17 (Madrid, 1995); J.R Saiz, Legislacion historica sobre propiedad industrial. Espana (1759-192 (Madrid, 1996); J.R Saiz, 'Patentes, cambio tecnico e industrialization en la Espana del siglo XIX', Revista de Historia Economica, 1999, 2: 265-8; J.M. Ortiz-Villajos, Tecnologia y desarrollo economico en la Historia Contempordnea (Madrid, 1999), and J.M. Ortiz-Villajos, 'Tecnologia y desarrollo regional en Espana, 1882-1935. Un estudio basado en las patentes de invention', Revista de Historia Economica, 1999, 1: 11-48; on Italy, M. Vasta, Innovazione tecnologica e capita umano in Italia (1880-1914): le traiettorie della seconda rivoluzione industrials, II Mulino (Bol 1999), and on Mexico, E. Beatty, Institutions and Investment: The Political Basis of Industrialization Mexico before 1911 (Stanford, 2001). International comparisons in I.E. Inkster, 'Technology Transfer in the Great Climacteric. Machinofacture and International Patenting in World Development circa 1850-1914', History of Technology, 1999, 21: 87-106; I.E. Inkster, 'Machinofacture and Technical Change: the Patent Evidence 1850-70', in I.E. Inkster et al (eds), The Golden Age. Essays in British Social and Economic History 1850-1870 (London, 2000), 121 I.E. Inkster, 'Patents as Indicators of Technological Change and Innovation. An Historical Analysis of the Patent Data 1830-1914', London Meeting of the Newcomen Society for the History of Engineering (London, 2002), and I.E. Inkster, 'Finding Artisans. British and International Patterns of Technological Innovation, 1790-1914', Cahiers d'Histoire et de Philosophic des Sciences: Artisans, industrie. Nouvelks revolutions du Moyen Age a nos jours (Paris, Lyon, forthcoming). 12. Khan, 'Property Rights...', (1995): the stronger the patents are, the greater the tendency to register inventions is. To this effect, see Moser, How Do Patents..., (2001): the more lasting and efficient a patent is, the greater its value. 13. The project is directed by Dr. J.R Saiz Gonzalez and Dr. F. Cayon Garcia. The following people have taken part in it as researchers from 1999 to 2002: Luis Blazquez Morales, Raul Chamorro Cobo, Rafael Illescas Rojas, Juan Carlos Garcia Gonzalez, Joan Gonzalez-Bueno Uribe, Pablo Gutierrez Astilleros, Francisco Llorens Acien, Inmaculada Lozano Caro, Jesus David Martin Alvarez, Alberto Martin Ruiz, Jorge Morales de Castro, Vanessa Moreno Vincent, Susana Ortega Vazquez, Esther Riaza Gonzalez, Elena Ruiz Labrador, Carlos Sanchez Dfez and Gorka Villar Parra. 14. The British Statute of Monopolies of 1624 or the French Declaration du Roi concernant les privileges en fait de commerce of 1762. See Macleod, Inventing the Industrial..., (1988), 16-18, and F. Savignon, 'La Revolution Francaise et les brevets d'invention', La Propiete Industrielle, 1989, WIPO, 11:416-17.

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15. N. Garcia Tapia, 'Los origenes de las patentes de invencion', in F. Ayala Carcedo (coord), Historia de la tecnologia en Espana (Barcelona, 2001), t. II, 90-4. See also N. Garcia Tapia, Patentes de invencion espanolas en el Siglo de Oro (Madrid, 1990). 16. Royal Decree of 16 September 1811; Gaceta de Madrid, 24 September 1811. 17. Patents Law, 7 January 1791: See Y. Plasseraud and F. Savignon, L'Etat et Vinvention: histoire des brevets (Paris, 1986), 186. 18. Archivo Historico Nacional, Estado, Leg. 164. 19. Decretos del Rey Nuestro Senor D.Fernando VII, y Reales Ordenes, Resoluciones y Reg generates expedidos por las Secretarias del despacho universal y Consejos de S. M, 1826 (Tomo 20. Coleccion Legislativa de Espana, t. CXIX. 21. Coleccion Legislativa..., nueva serie, t. XII. 22. Coleccion Legislativa..., nueva serie, t. CXV 23. Boletin Oficial del Estado, 26 March 1986, n° 73. 24. For a complete analysis of patents legislation see: Saiz, Propiedad industrial..., (1995). The aforementioned legislation has been reproduced in Saiz, Legislacion historica..., (1996), together with every other patent law up to 1929. 25. See Saiz, Invencion, patentes..., (1999), 133-7. In relation to prices and salaries see J. Maluquer de Motes, 'Precios, salarios y beneficios. La distribucion funcional de la renta', in A. Carreras (coord), Estadisticas Historicas de Espana. Siglos XIX y XX (Madrid, 1989), 499-527; J. Rodriguez Labandeira, El trabajo rural en Espana (1876-1936) (Barcelona, 1991), 290, and following; A. Soto Carmona, El trabajo industrial en la Espana contempordnea (1874-1936) (Barcelona, 1989), 509-81. 26. The more efficient the patent against usurpers is, the greater value they have for the patentee and the greater incentive its procurement represents: Khan, 'Property Rights...', (1995). A longer duration increases the value of the patent: R. Gilber and C. Shapiro, 'Optimal Patent Length and Breadth', RAND Journal of Economics, 1990, 21, 1: 106-12. In relation to the effects of patent duration on innovation processes, see Moser, How Do Patents..., (2001), 6-7 and 49-51. 27. Whenever it was possible, the calculations have been taken from patent applications rather than from concessions. Those of the UK are from 1852, those of France, Germany and the USA are from 1884, according to WIPO, 100 years of Industrial Property Statistics (Geneva, 1983) and P.J. Federico, 'Historical Patent Statistics 1*/r91—1961', Journal of the Patent Office Society, 1964, 46, 2: 83-171. In Spain, the greater part of applications were accepted, while in the USA, Germany and the UK the amount varies between 35 per cent and 65 per cent depending on the periods. For more details on patent statistics as well as for an exhaustive international comparison throughout the nineteenth and twentieth centuries see Saiz, Invencion, patentes..., (1999), ch. 2,1 andJ.P. Saiz, 'Patents, International Technology Transfer and Spanish Industrial Dependence (1759-1878)', in L. Hilaire-Perez and A.F. Garcon (eds), Les chemins de la nouveaute. Innover, inventer au regard de Vhistoire (Paris, forthcoming), appendix. 28. It lasted only until 1869, as the patent system was eliminated between 1869 and 1912. 29. Khan and Sokoloff, in 'Patent Institutions...', (1998), have proved how the fall of patent rates in the USA and the UK between 1790 and 1850 exerted a positive influence on registration tendencies. 30. A detailed study on foreign technological transfer in Spain before 1878 can be found in Saiz, 'Patents, International...', (forthcoming). 31. For technological transfer to Spain within the last quarter of the nineteenth century see J.P. Saiz, 'Transferencia tecnologica internacional hacia Espana a traves del sistema de patentes (1759-1900)', in Congreso Internacional: Las transferencias tecnologicas a largo plazo e dmbito mediterrdneo, Montecatini, SISE, AFHE, AHE and APHES, 9-11 November 2001 (Paris, forthcoming). 32. Concerning the nationality of enterprises that used to have investments in Spain during the nineteenth century and the beginning of the twentieth century, see T. Tortella, A Guide to Sources of Information on Foreign Investment in Spain, 1780-1914 (Amsterdam, 2000 Tables 1 and 5, pp. xi and xix. 33. Before 1878, 75 per cent of patents belonging to foreign residents in Spain were French, 14 per cent were British, 4 per cent were Italian and 2 per cent were German (Saiz, 'Patents, International...', forthcoming). From 1878 to 1900 French participation had dropped to 37 per cent, British participation was at 19 per cent, German 17 per cent, Italian 7.5 per cent, and History of Technology, Volume Twenty-four, 2002

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Belgian and Swiss was almost 5 per cent (Saiz, Transferencia tecnologica...', forthcoming). 34. For a general view of railway history in Spain see F. Comin, P. Martin Acena, M. Murioz and J. Vidal, 150 anos de historia de los ferrocarriles espanoles (Madrid, 1998). See also A. Gomez Menodza, Ferrocarriles y cambio economico en Espana, 1855-1913. Un enfoque de nueva hi economica (Madrid, 1982). 35. For ports development and maritime transport see F. Saenz, 'Evolution of Spanish Ports during the 19th Century', in CEHOPU, Spanish Ports Throughout History (Madrid, 1994), 101-16; E. Frax and MJ. Matilla, 'Transport and Maritime Trade during the 18th and 19th Centuries', in CEHOPU, Spanish Ports Throughout History (Madrid, 1994), 77-100, and J.M. Valdaliso, 'Growth and Modernization of the Spanish Merchant Marine, 1860-1935', International Journal of Maritime History, 1991, 3, 1: 33-58. 36. For banking development see G. Tortella (dir), La banca espanola en la Restauracion (Madrid, 1974), and J.R. Garcia, 'El sistema bancario espahol del siglo XIX: ,;una estructura dual? Nuevos planteamientos y nuevas propuestas', Revista de Historia Economica, 1989, 7: 111-32. 37. Sokoloff.,'Inventive Activity...', (1988). 38. Notice that between 1826 and 1850 a greater proportion of Spanish enterprises applied for patents than in the periods before and after (and also compared with foreigner applicants). This was the period in which capitalism was born in Spain and, not only the patent system but also the Trade Code - which regulated the organization of companies were established. Perhaps these first firms used the new patent system a little more to try to position themselves in the incipient market, especially by taking out patents of introduction for foreign technology, which were abundant in this period among Spaniards (see Table 2). 39. For more details see Saiz, Invencion, patentes..., (1999), 169-91. 40. It is not problematic to include corporate patents in the analysis before 1878, because 1) the sample we work with is quite large (74 per cent of the patents contain profession data) and 2) the enterprises were not only a few, but also small companies. Limited partnerships predominated (we have found only 79 incorporated companies) so we can classify them by their members' professions - among which the inventor is usually one of the partners - or include the companies in the group manufacturers, salesman, etc, of Table 5 without distorting the conclusions (see Saiz, Invencion, patentes..., (1999), 160-91). But between 1878 and 1911, it is not possible to include the corporate patents without distorting the analysis because 1) the profession data is only included in 25 per cent of individual patents while we know the data of 100 per cent of enterprises; 2) the number of companies using the patent system have increased significantly in this period (see Table 4 of this paper), especially large and industrial corporations, which makes it impossible to classify them by their members' professions; and 3) corporate patents can no longer be included in the group c) manufacturers, etc, because, as it is known, in the second industrial revolution the enterprises owned patents which protected inventions from engineers and other skilled workers who were on the staff. Hence, Table 5 has been calculated only with individual patents, but we must bear in mind the mentioned corporate participation in the Spanish patent system at the end of the nineteenth and the beginning of the twentieth century, which eventually may be worthwhile to study in detail. 41. See K.J. Arrow, 'The Economic Implications of Learning by Doing', Review of Economic Studies, 1962, 29: 55-73, and N. Rosenberg, Inside the Black Box: Technology and Economics (New York, 1982), 131. 42. See Inkster, 'Patents as Indicators...', (2002), 9-14, and Inkster, 'Finding Artisans...', (forthcoming). 43. See Schmookler, Invention and Economic..., (1966), 20-3. 44. Griliches, 'Patent Statistics...', (1990). 45. WIPO, International Patents Classification (5th Edition) (Geneva, 1989). 46. I must mention the great support and generous collaboration of Ruben Amengual and Gerardo Penas, who are examiner engineers of patents in OEPM, as well as the support given by the chemist Francisco Llorens, who has helped the group of researchers in classifying the patents. 47. They protect novelties of different types concerning housing reorganization, furniture, private and domestic objects, urbanism, medicines, hygiene, heating, music, sport and plays, shows, teaching, fine arts, optics, photography, etc. 48. They register different advances concerning flour grinding and production, pastries, pasta, canned fish, meat, vegetables, every kind of food item, ice production, alcoholic drinks, History of Technology, Volume Twenty-four, 2002

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sugar refinement, edible oils, tobacco, etc. 49. Including innovative activities within small production entities dedicated to manipulation of fats, oil, candles, soaps, cosmetics, glass, matches, medicines, fertilizers, lubricants, paints and varnishes, and other kinds of compounds of generic consumption. 50. Including inventions in plaster production, cements, bricks, tiles, artificial stones, building structures, bridges, digging systems, perforation, stone cutting, new elements and materials, etc. 51. It is in fact one of the main users of the patents system. A general panorama of the Catalonian textile industry is available in J. Maluquer, 'La estructura del sector algodonero en Cataluna durante la primera etapa de la industrializacion, 1832-1861', Hacienda Publica Espanola, 1976, 38: 133-48. 52. On thefirstAndalusian basic metals industry, see J. Alcala-Zamora, 'Production de hierro y altos hornos en la Espaha anterior a 1850', Moneday Credito, 1974, 128: 117-218; and on the Basque Country see L.M. Bilbao, 'Renovation tecnologica y estructura del sector siderurgico en el Pais Vasco durante la primera etapa de la industrializacion (1849-1880)', in J. M. Gonzalez, J. Maluquer and B. de Riquer (eds), Industrializacidn y nacionalismo. Analisis comparativos (Barcelona, 1985), 211-28. 53. On capital goods industry in Spain and the arrival of foreign enterprises during the first 30 years of the twentieth century see C. Betran, 'La transferencia de tecnologia en Espaha en el primer tercio del siglo XX: el papel de la industria de bienes de equipo', Revista de Historia Industrial, 1999, 15: 41-81. 54. Lately of interest to researchers. A first general overview was offered by J. Nadal and J. Catalan (eds), La cara oculta de la industrializacion espanola. La modernizacion de los sector lideres (sighs XIXy XX) (Madrid, 1994). 55. Later on it was questioned by Griffiths, Hunt and O'Brien, 'Inventive Activity...', (1992); see Sullivan, 'The Revolution of Ideas...', (1990), 353-61, who has found 35 per cent of patents on food items, glass, construction, services, paper, arms, etc. at the height of the British industrial revolution. 56. On railway patents see F. Cayon, E. Frax, M.J. Matilla, M. Muhoz and J.P. Saiz, Vias paralelas. Invencion y ferrocarril en Espana (1826-1936) (Madrid, 1998). 57. For the arrival in Spain of the great European chemical industry see, for example, A. Toca, 'Industria quimica y cambio tecnologico: el procedimiento electrolitico Solvay en Torrelavega', Quaderns d'Histdria de LEnginyeria, 1997, 2: 43-76. 58. Percentages of foreign technology in the different sectors between 1770 and 1878 may differ somewhat from those given in other works [such as Saiz, 'Patents, International...', (forthcoming)]. This is due to the fact that, in this case, we only include patents and privileges, omitting other awards given for inventions between 1759 and 1826. Another fact to take into account is that, on this occasion, for our calculations, those applicants of unknown nationality have been considered as foreigners, as it is possible to assume that they are not Spanish, in spite of not knowing their country of origin. 59. A detailed analysis of the requirements for patent practice between 1826 and 1878 and their reliability can be found in Saiz, Invencion, patentes..., (1999), 199-213. 60. Even though more than 80 per cent of patents expired before the sixth year of use, the duration of heavy industries patents tended to be greater than that of industries which are nearer to consumption. Principally, we can confirm this fact between 1878 and 1907. As a matter of fact, it partially coincides with some of the assertions of Moser, How Do Patents..., (2001), 9-12, who points out how these sectors have longer innovation cycles, and how the possibility of obtaining patents for more than ten years benefits the growth of their participation in the system.

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T h e

H i s t o r y

P a t e n t s

o f

t h e

f o r

S t e a m

i n

R u s s i a

F i r s t V e s s e l s

DMITRI G O U Z E V I T C H AND IRINA GOUZEVITCH

The purpose of this work is to clarify some events relative to the privilege awarded on the introduction of steamships in Russia to Charles Baird in 1817. In the Soviet historiography, these events were examined without taking into account the special features of privilege itself. As a result, the reasons that motivated the positions of different actors remained unexplained, and the whole situation was described in a quite inaccurate way. Strong distortions must also be expected due to the sharply negative attitude of Soviet historiography to Charles Baird by virtue of the simple fact that he was foreign. The concepts formulated from the 1940s to the 1960s continued to have a negative effect up to the 1990s. A brief account of our research in this field was firstly given in [ 1 ]. Now we propose to offer a more developed text. PROLOGUE: THE IDEA OF STEAM VESSELS: WATER-MOVED AND HORSE-MOVED VESSELS One of the first to formulate the idea of the introduction of steam vessels in Russia was Ivan Kulibin: he expressed it in his notes for 1797-8 and 1801.1 Generally this inventor and mechanic paid much attention to the so-called 'water-moved vessels' - river-capstans that could move against the stream with the force of water itself. This design is based upon the following principle: the water flowing in the river rotates wheels to whose axes are mounted on a pulley, to which the rope fastened to the anchor left forward is wound, and so the vessel rises 'from anchor to anchor'. In November 1782, Kulibin tested his first water-moved vessel on the Neva. The solution of these problems occupied him during the two last decades of his life (1800-18). However, vessels of this type depended too strongly on the rates of flow (which changed considerably from one section to the next and in the course of the year in one and the same river), on the depth of water, on the presence of banks. Like any other History of Technology, Volume Twenty-four, 2002

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mechanical transport, they required experienced mechanics. And, in the long run, a certain increase in speed and economy (in comparison with the vessels pulled by barge haulers) was not sufficient to give the necessary economic advantages over traditional techniques given the low wages of barge haulers. Therefore government regularly declined Kulibin's proposals about the building of these vessels at public cost [3; 5, pp.88-9; 6]. Kulibin was a brilliant inventor but unfortunately he was a very poor owner. As a result, not one of his inventions was used for creating industrial companies, remaining in the history only in the form of drawings or unique samples. Kulibin did not even take privileges, although juridical questions in this field were solved precisely in his time. Generally, the privileges in Moskovia were known from the second half of the sixteenth century. Initially they bore an exclusively commercial nature. From the middle of the seventeenth century the government began to issue them also in the field of industry (to the building of plants), and from the beginning of the eighteenth century in the field of transport (to the use of constructed channels). But with respect to such inventions any developed juridical background did not exist. This practice was initiated by the Manifesto about privileges on the different inventions and the discoveries in arts and crafts, issued on 17 June 1812.2 Commodity circulation in this enormous country with its lack of good roads and developed network of waterways, united at the beginning of the century into the thousand-kilometre-long hydraulic systems, almost completely depended on river transport. Therefore it is not surprising that after the war with Napoleon (1812), when the country began gradually to bring its economy into order and when it began to fully activate the recently finished Mariinskaja and Tihvinskaja hydraulic systems, the government had to deal with numerous claims for privileges relating to mechanical water transport. One of the first to submit an application, on 17 February 1813, was the French mechanic J.B. Poidebard. 3 His claim met with a favourable response, and in early February (May?) 1814, he obtained a 10 years' privilege for the operation of vessels with the machines pulled by horses on two Russian rivers - the Volga and the Kama. These all used the same capstans with a vertical spire and horizontal pulley. The spire was rotated by horses that walked in a circle. This system reduced by 5 to 6 times the number of people occupied for one and the same load (that is, from 300 down to 50-60 men) and increased by 1.5 to 2 times the speed as compared with the vessels pulled by barge haulers. Soon Poidebard collided with the fact that other horse-pulled capstans began to utilize the Volga from 1816. These vessels belonged to the serf peasant Mikhail Sutyrin. Poidebard passed a complaint to the Senate, charging the competitor with stealing and requiring both 30 thousand rubles as compensation of losses and the entire prohibition of the rival vessels. It was explained after trial that the vessels of Sutyrin had an original and more advanced design: their spire was arranged horizontally; horses were located in fixed places, there was a revolving circular platform, History of Technology, Volume Twenty-four, 2002

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but they did not move in a circle.4 As a result, in December 1818 the restriction imposed by the Senate on the vessels of Sutyrin, was removed, and on May 23 1819 he himself obtained a privilege.5 The authors who subsequently wrote about this came inevitably to a contradiction. According to the classical Soviet conception, the government gave advantages to foreigners with respect to the natural Russians, but also to the representatives of privileged classes (nobility and merchants) with respect to the peasantry, and, all the more, to the serfs. But here everything appeared to operate in the opposite direction! An analytic apology or excuse was found in the fact that Sutyrin was the serf of an influential dignitary, the Count Sheremet'yev, who was generally interested in the incomes of his serfs [3, p.253]. To our mind, the situation was entirely different - although this in no way removes the possibility of the influence of the Count. In contrast to the foregoing epochs, when granted privileges concerned a specific series of actions unconfmed by the use of any specific tool, mechanism, machine, apparatus, etc., the Manifesto from 1812 introduced precisely, and for the first time in Russia, the privileges for the use of concrete inventions. And therefore in each domain of activity many privileges could occur. The novelty of a proposed design served as a unique fundamental limit to obtaining it. So, in the case of the dispute that opposed Poidebard and Sutyrin, the Senate acted in strict accordance with the law. ROBERT FULTON6 Fulton focused his attention on Russia sufficiently early, even before the appearance of the above-mentioned Manifesto. In November 1811, he addressed a letter to John Quincy Adams (1767-1848), who since 1809 had occupied the post of American envoy in Petersburg and who became later his representative in Russia. Using this mediation, Fulton inquired to the Russian government about a privilege for the introduction of steamboats in Russia, in all its rivers - for 20 years, or, in the case of the stretch between Petersburg and Kronstadt, for 25 years. In this instance, he noted only two conditions: in the course of three years from the day of obtaining privilege, he promised to build and to start the first of such vessels, and not to increase the price of transportation with respect to the usual vessels.7 By a letter of 7/19 October 1812, Adams presented Fulton's proposals to P. Rumjancev, one of the most important of Russian statesmen, who occupied within the Russian government two chief positions - of chancellor and of chairman of the State Council.8 Further events developed surprisingly swiftly for Russia. Rumjancev reported about Adams's letter to Tsar Aleksandr I, and, on the requirement of the latter, asked on 14 October 1812 the opinion of two interested administrations: the General Direction of Communications and the Ministry of the Navy. The interim chief director of communications, engineer-general Franz Devollant, passed the letter to lieutenant-general Augustin Betancourt asking for a conclusion. The selection was not History of Technology, Volume Twenty-four, 2002

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random: one of the most important engineers of this epoch, Betancourt was the only specialist in Russia who had already designed and constructed steam vessels. True, these were the excavators, where a steam engine of 15 hp was used, in the first place, for the excavation of soil.9 As soon as 18 October 1812 Betancourt had prepared the 'Observations sur la demande de privilege exclusif sollicite par le Sieur Robert Fulton de la ville de New-York aux Etats-Unis de l'Amerique', where he gave a positive opinion of the privilege, objecting only to the excessive delays. He referred to the legislations of England and France, where the maximum period was limited to 14 years, and he proposed to determine to Fulton a period of 15 years 'by respect of the remoteness of the inventor'.10 Let us note that by the Russian legislation the period of privilege was commonly determined as 10 years. Betancourt also emphasized a key condition of 'three years', in the course of which Fulton had to arrange for the effective operation of at least one steam vessel in Russia; otherwise he was deprived of privilege. Navy minister, the Marquis de Traversay,11 made a curious comparison: the sail passage-boats, with tailwind, needed about three hours to cover the distance between Petersburg and Kronstadt, whereas according to Fulton's estimations such a journey would take four and a half hours for the passenger voyages and six hours for the cargo voyages. Comparison was clearly not in favour of steamships, but, nevertheless, the letter of Adams did not cause special objections from Traversay. Already on 18 October 1812 he reported to Rumjancev that Aleksandr I recognized 'this invention as useful'. Fulton completely agreed to the conditions proposed to him, and Adams informed Rumjancev about it by letter on 7/19 July 1813. However, now the passage of papers was slowed down: the coalition war against Napoleon went on and the emperor found himself in Europe. Rumjancev informed His Majesty about the new letter of Adams, and during October 1813 he passed a question to the Department of State Economy and Public Works of the Ministry of Internal Affairs (MIA). This Department, in line with the Manifesto of 17 June 1812, decided that a detailed description of the invention with figures and drawings should be demanded from Fulton. In a note from the minister of internal affairs, O.P. Kozodavlev, of 1 November 1813, it was acknowledged that it was quite possible to apply to Fulton's invention the rules given in the Manifesto with an increase in the period of privilege to 15 years and the maintaining of state-duty (1500 rubles). On 10 December 1813, Aleksandr I signed in Freiberg an edict concerning the delivery of a privilege to Fulton 'relying on the Manifesto from 17 June 1812' with the payment of duty.12 Virginskij correctly emphasizes that this was only a right to privilege, but not the privilege itself, since in order to obtain the latter Fulton had to send a description and drawings, and to pay duty. In the event, this was never done. However, the counting of the nominated period went, according to edict, from 10 December 1813. At the end of January 1814, the minister of internal affairs demanded from Fulton the missing papers. The inventor died on 23 December 1815, without having sent any answer. His silence during the interim was possibly History of Technology, Volume Twenty-four, 2002

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due to the military actions between England and the USA, and the breakdown of regular communications with Europe. But the fact remains. When in the spring and summer of 1815, the Hudson steamboat company attempted to defend its monopoly right, believing that it must pass to the widow of the inventor, it obtained a quite clear response: the privilege has not been delivered to Fulton, since he never sent the required full description and drawings. However, as was explained, the heirs had yet a chance to realize their rights to privilege under the condition that they introduce the steamboats in Russia prior to December 1816. In the case that they failed in this, then the very possibility of obtaining privilege would disappear.13 One can hardly argue that the long-suffering authorities were anything less than correct in their attitude towards the heirs of Fulton. CHARLES BAIRD14 The attack on Fulton's monopoly began almost immediately after his claim to privilege. The first to make such an attempt was P. Svin'in. He, apparently, tried to get ahead of the American himself with claiming a privilege, but he did not have time. On 22 January 1813, Rumjancev wrote to him that only two or three months before he had consented to the delivery of privilege to Fulton. However, if Fulton did not satisfy the required conditions, then Aleksandr I would be informed about Svin'in's proposal [2, p.220-1]. The next proposal followed in 1814 from the English seaman and designer Dodd.15 Being in England in spring 1815, Petersburg academician I.H. Gamel' sent to O. Kozodavlev the model of a steam vessel with description and drawings.16 Materials on ship building in England were also assembled by the director of the Izhorskie plants, A. Vilson, just as Svin'in actively wrote about the steamships in the Russian press.17 As a result, Russian public opinion was fairly well prepared for their introduction. The privilege promised to Fulton played somewhat the role of a curb. Its implementation was awaited. Thus, in the article 'Steamboat in the Neva', published in the periodical Syn otechestva (Son of the fatherland) in 1815, it was communicated that 'M. Fulton, as far as we know, did not even go ahead with his duty, which has now completely ceased after his death' (cited on [2, p.237]). Therefore, as soon as the information about the death of the inventor arrived in Russia, the Ministry of Internal Affairs received the new claim: on 26 May 1815 Baird filed his application for a privilege of the same type as had been intended for Fulton, but extended to 10 years and with the reservation that 'he will grant the State administrations use of this invention and will contribute himself to the introduction of the afore-mentioned into use with the transportation of State freight'.18 On the demand of the ministry Baird, in contrast to Fulton, presented a detailed description and drawings of his design. On 14 June 1815 the claim proved to be in the General Direction of Ways of Communications. After only five days Devollant, who carried out its examination, gave the opinion that Baird's project was the reproduction 'of such machines used History of Technology, Volume Twenty-four, 2002

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already in England and in America, the theory he presents promises ... so many benefits that it is very desirable to introduce these machines ... in Russia as well'.19 In spite of this, the privilege was refused to Baird since, from one side, Fulton's rights were still kept for his widow, and, from the other side, it was sensibly estimated that no one should be prohibited 'to adapt steam engines to the motion of navigable vessels ... in order not to hinder anyone in the manufacture and in the use of this invention'.20 However, as was shown by practice, this solution was rather playing into Baird's hands, since in a legally unclear situation no one intended to impede his activity. And, apparently, not later than March 1815 (i.e. three month before he supplied the claim) Baird began the construction of the steam vessel, which represented a standard boat equipped with a steam engine of Watt type with 4 hp and 6-blade wheels. In the summer of 1815, Baird went ahead with tests in the Neva and demonstrations to the 'curious'. On 20 August he used his invention to tug to the pier of Isaakievskij bridge the 'passage boat of the Admiralty', which had stuck in the fairway because of the calm. On 2 September he demonstrated his creation to the Empress Mary Fedorovna, and in order to do so, he introduced the steamboat into the lake near Tavricheskij Palace. On 3/15 November 1815, he completed a trial voyage to Kronstadt, which turned out to be the first sea steamer voyage in Russia.21 In 1816, without waiting for any permission, Baird built the second steamship, after opening from the spring regular voyages into Kronstadt. From 1817 he also operated the towing of lighter boats.22 Meanwhile, on 10 December 1816 the period elapsed in which the heirs of Fulton could realize their right to privilege. The new stage of patent war began from this point on. Baird immediately gave to the Ministry of Internal Affairs an application for privilege, anticipating his principal possible competitor V. Vsevolozhskij (who also prepared to inquire of a privilege).23 The decision about Fulton and his heirs' right to obtain privilege was taken by the minister Kozodavlev on December 27 1816. In a special memorandum directed to the State-secretary A. Olenin in view of its presentation to the State Council, he declared this right as rescinded, according to the edict of 10 December 1813, since they had not only failed to construct a steamship during the three-year period, but they had not even presented descriptions and drawings of the afore-mentioned device. Against such a background, on 16 April 1817, the State Council decided to satisfy Baird's application. On 9 June 1817, the Ministry of Internal Affairs officially acknowledged all papers, and precisely from this point forward the counting of the period of privilege began. On 30 October 1817, the Senate published a special edict. Baird obtained the privilege to the navigation on all rivers and seas of the European part of Russia - from the White to the Caspian, from the Baltic to the Black. The period granted was 10 years. The principal limitation concerned those water bodies, whereby if Baird in three years did not introdue steamships, then he lost the right to privilege.24

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After receiving such enormous rights, Baird behaved in a very correct way. Unlike the Hudson company, he did not raise the question about the destruction of the vessels of competitors, but simply sold them licences. Thus, in 1820, Vsevolozhskij had to purchase a licence for two steamships; later on Rumjancev and Poltorackij had to do the same for the steam vessels on the Sozh and the Dnepr.25 Of course, such comparative correctness had a juridical and economic background. Moreover, it followed from the nature of Baird's privilege. But precisely this fact was ignored by the later Soviet historians, who used as a starting point the view formulated by Virginskij that' Baird's monopoly had the most negative consequences' for the development of steam navigation, since he inhibited the activity of his competitors.26 The paradox is that in reality Baird was extremely interested in the existence of his competitors, especially during the first three years. Another question that arose concerned the costs of legitimate operatives they had to pay Baird for a license, just as he himself was obligated to pay for his privilege. But any firm, after receiving licence from Baird, de-jure secured the status of his daughterly enterprise! And thus, by introducing steam navigation on some rivers during the three-year delay, any firm operating there inevitably preserved the privilege of its patron who gave out the licence, i.e. of Baird. From this point of view, the existence of such 'competitors' was profitable to Baird, and he was interested in selling them licences even if to push them to do so, he had sometimes to resort to lawsuits (as was the case with Vsevolozhskij). Thanks to such a system, the total then reached (besides those built at the State plants) '15 acting or prepared' for launching steam vessels of Baird himself or of private individuals who received his licence. Paradoxically, the only conclusion that the Soviet historians derived from these regularly quoted incidents was that: 'If not for Baird's monopoly, steam vessels, probably, would be more numerous.' 27 Our conclusion is diametrically opposite to this. Let us compare the dates: from a formal point of view the year 1820 closed the three-year period of privilege, after which it was maintained to seven more years only on the rivers where the steamships were already operating. In fact, Bair bit off more than he could chew and the whole power of his plant simply was not sufficient to manage it. Around 1820, he associated into this business D. Evreinov, a landowner from Jaroslavl, and together they formed a new company.28 But even that was not sufficient. In order to attract other private plants and to introduce steamships on the new water flows under existing circumstances, he had to stimulate this process and to give out licences on very favourable conditions. Contrastingly, after 1821 his price policy seems to have changed radically. It would be interesting to compare financial documents of both periods, but checking this hypothesis falls outside our technical possibilities. Before examining the key events that occurred during the first years of the action of Baird's privilege, let us again emphasize that it did not apply to State plants or to State navigation. To 1829, according to the order of History of Technology, Volume Twenty-four, 2002

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the Sea Department, 12 steamships were built there. Moreover, the first of them - 'Skoryj' - was laid at the Izhorskij plant during February 1816, i.e., during the same year that Fulton's right to privilege was annulled, and, possibly, in the expectation of this event.29 Let us return to the events of June 1815,30 when Devollant, who had already to give conclusions on both Fulton's and Baird's privileges, proposed before the officers of the Corps of Engineers of Ways of Communication (KIPS) the improvement of the methods of internal navigation (first of all, on the Volga). As a response, Betancourt, then inspector of the Institute of KIPS, suggested that Colonel P.D. Bazaine, professor of that institute, should investigate the design of a steam capstan of his own invention.31 Bazaine carried out this research successfully, putting into it all his knowledge as an engineer-polytechnician whose teachers had been Monge, Laplace and Lagrange. According to his calculations, the number of boats of specific load capacity that a paddle-wheel steamer can carry is inversely proportional to the square of speed, whereas in the case of a capstan this number is inversely proportional to speed. It is worth noting that besides resistance to motion in the standing water the paddle-wheel steamer overcomes resistance from the force of flow. Therefore, with the shutdown of the engine it will be carried downward along the river. However, the capstan in this case will remain on the spot because the effort is transferred through the rope to the anchor. The stronger the flow the weaker is the machine, the more noticeable is the advantage of a capstan with respect to the paddle-wheel steamer with up-stream navigation [1, p.70-1]. In February 1816, the manuscript of memoirs [30] was submitted to Devollant. In April 27, it was examined by the Committee attached to the General Director of Ways of Communications. Devollant, following the proposals of Bazaine, also supported by a well-known engineer Carbonnier, charged this latter to design a steamship, to control its building and to conduct its testing on the Neva and the Volkhov [33, f.9, 24]. In February 1817 Aleksandr I approved the report of Devollant and 'ordonna de soumettre a 1'experience les resultats de 1'analyse, en construisant a cet effet un bateau a vapeur, destine a agir dans les eaux de la Neva' [31, p.8-9; 32, p.7]. Some authors indicate that the combined capstanpaddle-wheel steamers designed by Bazaine proved to be unfit for the Volga; others consider that no real experiments were conducted; and a third group assert that they took place and showed that the paddle-wheel steamer of 60 hp was more effective than a pair of capstans - such a result contradicted the conclusions of Bazaine, but reflected reality [4, no. 8, p.61; 5, p.100; 34]. However, once more the course of events was other than any of this. Bazaine started the drawings of the vessel and a month later reported that it was necessary to have the high-speed steam boat 'with paddles' for the delivery of anchor and two steamships of identical power: capstan and paddle-wheel. He suggested that Baird should be in charge of building them, so that the experiments could begin in the spring of History of Technology, Volume Twenty-four, 2002

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1818 [33, f.32-9, 51-8]. Thus far Baird carried out this order of the treasury, Bazaine presented the manuscript of his memoirs to the Academy of Sciences, where it was examined by April 23 1817, and obtained the enraptured opinions of academicians N.I. Fuss (disciple of Euler) and E.D. Kollins. As a result, on 10 September 1817 Bazaine was unanimously elected as Corresponding Member of the Academy of Science of SaintPetersburg [31, p.17-18; 32, p.14-15; 35]. However, because of Devollant's death, the conducting of experiments (30.11.1818) broke down. Baird, in his turn, was occupied with the urgent building of his own steamships following the privilege obtained in 1817, and so he did not hurry with the fulfilment of a State command. Only four steam machines of 8 hp each and two multi-purpose vessels equipped with capstans and onboard wheels for the delivery of ropes, were ready by the spring of 1821. At this point the improbable ocurred. On 3 May 1821, Baird proposed to conduct the experiments 'by his own costs ..., without leading government to the expenses', and promised to return 25 thousand rubles paid off to him! On 6 May the Department of Ways of Communications agreed to this. How to explain the seeming fantastic generosity of the famous factory owner? The situation becomes transparent if we compare some dates. The three-year period, in the course of which Baird had to place steamships everywhere he wanted to preserve for himself the privilege, elapsed on 9 June 1820. However, because of the administrative networks and the prolonged winter period, when navigation is not a priority, and possibly also because of the close contact of Baird with the representatives of different administrations, only on 10 May 1921 did the Department of Ways of Communications declare a loss by him of privilege on all waters where he had not yet established steamships, i.e., in the period of the opening of the new navigation and four days after agreement to the proposal described above. Meanwhile, using the money of the State (which, thanks to his proposal of reimbursement, turned out to be an interest-loan), Baird built the ships intended for the Mariinskaja system and the Volga. On 7 May, the day after obtaining the agreement from the Department of Ways of Communication, he sent them into the way already as his own ships and no more those of the State, and thus, he could preserve his privilege on both mentioned river systems. In exchange, he charged himself with the financing of the experiments in which additionally he was himself interested. As for the General Direction of Ways of Communication, which suffered from chronic shortage of means, it was pleased to recover its money and to get the possibility of running the necessary experiments by a private voluntary means [21]. In 1821-2 important experiments took place in the Volga, between Rybinsk and Nizhnij Novgorod. Among the tested vessels were a capstan and two combined steamships with vertical spires, one capstan with horizontal spire and one paddle-wheel steamship. A new method was also tested - that of caravans carried by two multi-purpose vessels simultaneously, that reduced to a minimum time losses due to the change of ropes. As a result, it was concluded that the methods of haulage by one History of Technology, Volume Twenty-four, 2002

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paddle-wheel steamer with 60 hp or by one capstan, on condition 'that the movement is produced in the boats by people', do not have advantages over the combined method. This latter method, although it is inferior in speed to the paddle-wheel steamer, turns out to the most benefited way to the forwarding of the most significant loads'. In other words, a steamship with 60 hp proved to be advantageous only for the urgent delivery of small loads (150-200 tons). For the transportation of load of 1,000-1,300 tons up to a distance of 450 versts (482 km) the same ship expended 20 per cent more time and 100-150 per cent more fuel than both combined vessels with 16 hp each. As for small paddle-wheel steamers, they proved to be badly adapted to convey the load against the current [1, pp.72-3; 21, f. 160-9]. Thus, Baird produced experiments and these confirmed Bazaine's conclusions about the advantages of capstans. In the early development period of steam navigation with its imperfect and weak machines, steam capstans turned out to be a transitional type from the horse-moved vessels to the paddle-wheel steamers.32 CONCLUSIONS Summing up our analysis, we cannot but make the following conclusions. First of all, let us stress the role of the State in the whole story. Having issued the Manifesto about privileges for which the need was felt for a long time, the State followed without deviation the legal standards elaborated on this occasion, without distinguishing between its own subjects and foreigners. In Soviet historiography this standpoint was often used as a basis to show that the Tsarist government had excessively privileged the foreigners to the detriment of local talents. Another interesting point is that, since the very beginning, the best engineers found themselves embedded in the system of expertise. Since the beginning as well, this process aimed to evaluate any claim about privilege not only from the point of view of its innovating content but also from that of its interest for the State. In defence of such a system, the very fact of involving the State engineers as experts stimulated their participation in the elaboration of the significant inventions for which they could obtain privileges. The example of the steamships is very illustrative from this point of view. Finally, because of the political engagement of Soviet historiography and the insufficient attention given to the archives, or because of neglect ofjuridical realties, the early history of steamships in Russia remained until recently not simply incomplete, but strongly distorted. We hope that the present article, which is far from claiming to have the complete and detailed description of events, will serve to correct some of the strongest distortions.

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Sources 1. Gouzevitch (Guzevi) D., Gouzevitch I. Petr Petrovi Bazen (Bazaine): 1786 - 1838. SPb.: Nauka, 1992. 234 p.; [2e ed.]. 1995. [4], 240 p. 2. Virginskij V Robert Ful'ton: 1765-1815. Moskva: Nauka, 1965. p.276. 3. Pipunyrov V, Raskin N. Ivan Petrovi Kulibin: 1735-1818. Leningrad: Nauka, 1986. p.302. 4. ZaharovV. Naalo parohodostroenia v Rossii, Sudostroenie. 1972. 7. p.53-56; 8. p.59-62; 10. p.49-54. 5. Renoe sudohodstvo v Rossii, Amusin, B.Bogdanov, V.Ivanov [et al.]; Pod red. M.ebotareva. Moskva: Transport, 1985. p.352. 6. Dormidontov N. 'Mainnye suda' I.P. Kulibina = Les bateaux mecaniques de I.P.Koulibine: d'apres les documents inedits, Arhiv istorii nuki i tehniki. Vyp.5. M.; L., 1935. p.319-359; Koin N. Kulibin. Moskva: Molodaa gvardia, 1940. p.136-138, 218-219. 7. Brandt A. rk istorii parovoj mainy i primenenid parovyh dvigatelej v Rossii. SPb., 1892. p.70 8. Furer L.N. K istorii razvitia volskogo sudohodstva, Istorid SSSR 1959. 2. p. 153; Mel'nikov P. K istorii razvitia parohodstva na Volge: Zapiska P.P. Mel'nikova 'Poezdka na Zolgu' Krasnyj arhiv. T.4-5(89-90). 1938. p.309-335. 9. Rodin F. Burlaestvo v Rossii: Istoriko-sociologieskij oerk. Moskva: Mysl', 1975. p.173-174. 10. 'Eto interesno interesno znat', Renoj transport. 1961. 7. p.23. 11. Nikolaev A., Itkov S. Kratkij istorieskij oerk voddnyh i suhoputnyh soobenij i torgovyh port v Rossii. SPb., 1900. p.372. 12. Virginskij V. 1504etie parovogo sudohodstva v Rossii, Voprosy istorii estestvoznanid i tehniki. Vyp. 19. 1965. p. 144-145. 13. Bogoliubov A. Un heroe espanol del progreso: Agustin de Betancourt. Madrid: Seminarios y ediciones, 1973. p.191. 14. BogolubovA. N. Avgustin Avgustinovi Betankur: 1758-1824. M: Nauka, 1969. p. 152. 15. CGA VMF. F.131, op.l, d.3119: Ob izgotovlenii na Iorskih zavodah parovoj mainy did istki gavanej i o peredae ee v Krontadtskij port: Opisanie parovoj mainy did istki gavanej po proektu Betankura, 1812-18, ff.4-12, 23-33; d.3289, 1819-23, 29 f.; d.3317, 1819-23, 29 f.; Nadal'ak p. Zemleerpatel'naa tehnika v Rossii v XVIII i v pervoj polovine XIX w. Trudy XIIIMedunarodnogo kongressa po istorii nauki. Sekcia XI. Moskva: Nauka, 1974. p.72-75; Davidenko A. Russkoj parovoj zemleerpalke - 150 let, Istorieskij arhiv. 1962. 5. p.216; Ivanov N. Oteestvennye zemsnarady, Mehanizacid stroiteVstva. 1965. 9. p.28-30; Ekskavatoru - pat' vekov, Tehnika molodei. 1983. 2. p.33-35; Lizcano Cenjor R. Agustin de Betancourt: Un esparil en Rusia, Revista MOPU. 1984, die. 316. p.80-83; Betancourt y las dragas de vapor: Kronstadt / Gonzales Tascon I, Betancourt:Los inicios de la ingenieria moderna en Europa. Madrid: Ministerio de Obras Publicas, Transportes y Medio Ambiente, 1996. p.268-27l; Gonzales Tascon I. Betancourt y la maquina de vapor de doble efecto de Watt, Betancourt:Los inicios de la ingenieria moderna en Europa. Madrid: Ministerio de Fomento, 1996. p.100-101. 16. Chatenet, Madlen du. LAmiral Jean-Baptiste de Traversay: Un Francais, ministre de la Marine des Tsars. Paris: Tallandier, 1996. p.477. 17. Danilevskij V Pervye russkie parohody: K 125-j godovine postrojki pervogo parohoda v Rossii, Morskoj sbornik. 1941. 1. p.53-68. 18. Brandt A. Stoletnij ubilej parohodnogo dela v Rossii: 1815-1915. Petrograd: Izd-e urn. Teplohod', 1917. p.ll. 19. Berd, Russkij enciklopedi. slovar', Izd. I.N.Berezin. T.3. SPb., 1873. p.496-497; Berd, Russkij biografi. slovar. T.II. SPb., 1900. p.728. 20. Pervye eleznye dorogi v Rossii, Krasnyj arhiv. .3(76). 1936. p.149-150, 153. 21. RGIA. F.159, op.l, 1815, d.588, 237 f. 22. RGIA. F.159, op.l, d.538, ff. 1-233; Bazaine P.D. Travaux projetes et executes. Pt.2. Ff.129-131. (Peterburgskij institut inenerov putej soobenia, bibloiteka, 1856). 23. Virginskij V, Zaharov V. Novye materialy o pervom russkom parohode, Sudostroenie. 1974. 8. p.55-58. 24. Renin E. Pervyj rejs pervogo parohoda, Smena (Leningrad). 1972, 23 nd 25.01. p.4; Passairskij parohod na Neve, Literaturnoe nasledstzo. T.58. Moskva: Izd-vo AN SSSR, 1952. p.81; Virginskij V. Oerki istorii nauki i tehniki XW-XIX vekov. Moskva: Prosveenie, 1984. p. 178, 180; Vadimov V. Morskie passairskie perevozki Rossii, Morskojflot. 1972. 2. p.67. History of Technology, Volume Twenty-four, 2002

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25. Belov V. Istorieskij oerk UraVskih gornyh zavodov. SPb., 1896. p.61-62. 26. Basevi V. Parohody Rossii, Morskoj flot. 1993. 3-4. p.38-39. 27. Tower T. Memoir of the Late Charles Baird, esq., of St. Petersburgh, and of his Son, the Francis Baird, esq., of St. Petersburgh, and 4, Queens Gate, London; Members of the Institutio Engineers in England, of the Council of Manufacturers in Russia, Noblemen, Merchants of th Guild, etc., etc. London: Harrison & Sons, 59, Pall Mall, 1867. [2], 19 p., 12 f. of pi. 28. ov V. Imel li nazvanie pervyj russkij parohod?, Sudostroenie. 1973. 10. p.56-57. 29. itarev V. I vse-taki 'komenik'!, Tehnika - molodei 1983. 6. p.63-64. 30. Bazaine P.D. Memoire sur la theorie du mouvement des barques a vapeur et sur lew appl tion a la navigation des canaux, desfleuves et des rivieres.SPb.: Impr. de l'Acad. imp. des sc, 1817 p.79. 31. O trudah oficerov Korpusa inenerov putej soobenia, urnal putej soobenid. 1826. Kn.3. p.1-18. 32. Des travaux des officiers du Corps des ingenieurs des voies de communication: Partie theorique, 2e article, Journal des voies de communication (SPb.). 1826. 3. p.1-15. 33. RGIA. F.159, op.l, 1816, d.274, ff.1-58. 34. Voronina M. Stanovlenieprikladnoj mehaniki v Rossii: Ipolovina XIX v.: Dis. ... hand, fiz. mat. nauk. Moskva, 1980. p.54.a 35. rhiv RN (SPb.). F.l, op.l -18l7, d.28, f.40-41, 49, 82, 84, 92ver.; F.40, op.l, d.140; Akademia nauk SSSR: Personal'nyj sostav. Kn.l: 1724-1917. Moskva: Nauka, 1974. p.108.

Notes and References 1. [2, p.211; 3, p.135; 4, n° 7, p. 53]. 2. [2, .222] with reference to: Polnoe sobranie zakonov Rossijskoj imperii (PSZ). SPb., 1830. T.32. 25143. p.355-357. 3. In the past, prof, of mathematics in the college of Lyon. From 1811 at the Pozhevskij plant belonging to V. Vsevolozhskij where he ran the experiments with the horse-moved vessels. [3, p. 160, 252-3, 295] with ref. to: Privilegid, dannad inener-mehaniku Pua de Bardu na izobretenie im mainy did udobnogo vzvoda sudov s boVim gruzom protiv teenia rek: S po opisaniem onyh i risunkov, St. Petersburg, 1815. All dates linked with this privilege in the literature are uncertain. Thus, in [3, p.160, 252] one canfindtwo contradicting dates of obtaining privilege: 5 and 23 February 1814. According to [5, p.85; 7, p.48], the privilege is given in May 29 1814 on the decision of State Council, and, according to [2, p.212], by Senate edict from 19 October 1814. Most likely, all these dates correspond to the specific stages of the passage of papers through different administrations, and the discordance in them rather testifies about the inattention of historians to the juridical aspects of the problem. One more event could also play its role in this confusion - a lawsuit of Poidebard by his former parton Vsevolozhskij, who allegedly sent to him in January 1811 the drawings of horse-machine vessels. B. Bogdanov considers these drawing as being those of Kulibin [5, pp.83-6]. However, in this case Vsevolozhskij had to purchase or to steal them. But in extensive, well-studied and published Kublin's archive (which includes his notebooks) no word is said about this. Neither in any work about him did we succeed infindingone reference about his resentment of Vsevolozhskij or Poidebard, although all events occurred during Kublin's life. Apparently, we deal here with one more aberration linked with the mythologization of this inventor. 4. Besides them, the systems of horse-moved vessels were designed by Aleksandr Durbazhev on the Kama, Thomas Rjabi in Petersburg (1818) and Vasiliy Fok (1828). The last privilege was given out in 1855 to Isakov, petty bourgeois from Rybinsk. In 1850s, the horsemoved vessels were yet still in action [2, p.212; 5, p.87; 7, p.48; 8; 9]. 5. [3, pp.252-3, 295] with ref. to.: Privilegid, vydannad krest'dninu grafa eremet'eva Mihailu Sutyrinu na upotreblenie mainy did vzvoda sudov protiv teenia rek, s proizvedennym onym opi risunkom. SPb., 1820. See also [5, 86; 10; 11, p.175]. 6. To relate this story, we used essentially [2, pp.214-35; 12]. Remaining sources are specified. 7. We will not detail here the complex intrigue that followed, linked with the name of P. Svin'in, the secretary of the Russian consulate in Philadelphia. Let us just mention that in 1812, in America, Svin'in tried to negotiate with Fulton about the possibility of being in Russia History of Technology, Volume Twenty-four, 2002

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the representative of the Hudson Company in Russia together with Robert R. Livingston. The sense of the intrigue was that in parallel Svin'in made the same proposal to Fulton's competitor, the Stephens family. 8. [2, p.214-217] with ref. to: CGA VMF. F.166, p.l, d.1193: vvedenii v upotreblenie perevoznyh sudov izobretenid g.Roberta Fultona, 1812. 9. The steam excavator of Betancourt was built for Kronstadt in 1810-12 and put into service in October 1812, i.e., simultaneously with the described events. See about it: [4, no.7, p.53; 13, pp.94-6; 14, pp.71-4; 15]. The working model of the steam excavator of Betancourt is located in the Museo Elder de la ciencia y la technologia (Las Palmas de Gran Chanaria). 10. [2, p.218] with ref. to: Delo o privilegii izobretatela parohodov Roberta Fultona v Rossii, Sbornik svedenij i materialov po vedomstvu Morskogo ministerstva. .2, no.5. 1865. pp.423-4 11 In the folklore of Russia Traversay appears as a character of rather anecdotic nature. Thus, the water area between S. Peterburg and Kronstadt obtained in his honor the name of the 'marquis' puddle'. This attitude was, possibly, not always correct, since his administration (as well as that of Devolanta) fell on the heaviest period of war, 1812-14, and of postwar crisis with its empty treasury. The ministers of that epoch were much more occupied with ensuring the survival of their administrations than developing them. On Traversay, see the recently published monograph [16]. Unfortunately, it must be used with caution, since in so far as Russia and, in particular, the early history of steamships are concerned, the confusion is total: dates, figures, facts are distorted. 12. [2, pp.222-3] with ref.: CGIA, f.1162, t.XVI, d.l: O vydannoj itelu Amerikanskih Soedinennyh tatov FuVtonu privilegii na 15 let na vvedenie v Rossii vodohodnogo sudna, de ognem iparami, 1814-16 and [5, pp.90-l]with ref. to: PSZ. T. 32. 25496. See also [4, no.7, p.53; ll,p.l74; 17, pp.55-6;18, p.l]. 13. Correspondence was conducted through American attorney Levett-Harris. [2, pp.232-4]. 14. Charles Baird (1766-1843) - Scottish engineer. In 1786, he arrived in Russia with Gascoigne. In 1792, he devoted himself to private enterprise and initiated one of the largest private mechanical foundries in Russia. By 1825, Baird had built nearly 130 steam engines [2, p.225;4; 17, p.56; 19; 20]. 15. The historians are not unanimous about thefirstname of this inventor: George or Ralph. 16. Unfortunately, we don't know the name of the inventor nor what kind of invention it was 17. [2, pp. 224-5, 230-1, 236-7; 4, no.7, p.53; 5, p.270; 12; 17; 18, p.l]. 18. Quoted after [2, p.226] with ref. to.: CGI, f.1152, t.I, d.52: Ot Ministra vnutrennih del otnositeVno pros'by obergitterfervaVtena Berda o vydae emu privillegii na upotreblenie paro 1815. This mining rank of Baird corresponded to the rank of Major (VIII cl. according to the Table of ranks). 19. [21, f.9-10]. See also [1, p.69; 21, f.11-12; 22; 23, p.55]. 20. [2, pp.234-5] with ref. to: CGIA. F.1152, t.I, d.52, f.7. See also [5, pp.92-4; 21, f.15-16]. 21. For numerous descriptions of the first voyage, which ascend to the text of its participant, Captain Rikord, and also for studies relative to the designs of thefirststeamships of Baird, see in the literature: [1, p.69; 2, pp.236-8; 5, pp.91-3; 7, pp.43-4; 11, p.176; 13, p.104; 14, p.80; 17; 18, p.l; 24-6]. The basic multiplicated errors stem from the famous publication of Tower, the husband of Baird's granddaughter. She reported, for example, that his first steamship was called 'Elizaveta' and he published as the drawing of this steamship some of the early sketches preserved in the family archive [27]. Only by the mid-1970s did it become possible to confirm that the first steamships of Baird did not have names, and that the real drawing of thefirstvessel is thefigureone canfindin the published text of privilege [4; 23; 28; 29]. 22. [4, no.7, p.54; 7, p.44; 18, p.l; 26]. In 1820, four steamships of Baird were in use in the harbour of Saint-Petersurg: two with power of 32 hp, one of 25 hp, one of 12 hp (the latter was used as a tug). And one more, thefifth,walked apparently, in the limits of the Neva [2, p.250; 5, p. 98; 11, p. 176; 17, p.67]. Bairds' family was occupied by the steamer matter to 1858 [18,p.4].

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23. About Vsevolozhskij and the futile attempts to organize the steamship building at his Pozhvinskij plant, see [2, pp.237-45; 4, no.7, p.55; 5, pp.93-8; 7, pp.54-5; 11, pp.177-8; 12; 13, p.104; 14, p.80; 17, pp.60, 64-6; 18, pp.5-6; 25]. The failure of these works was not connected with Baird's privilege, as is sometimes written [3, p.27l], since in April 21(29?) 1820 (one additional date is April 1821) Vsevolozhskij purchased a licence from Baird. It seems rather to be a result of a quarrel following which Vsevolozhskij expelled from the plant his main 'brain centre' - mining engineer P.G. Sobolevskogo, without whom local mechanics proved to be unable to organize the production. 24. [2, p.247; 5, p.93; 23]. The text of Baird's petition and drawings were published in the following year: Privilegid, dannad oberbergmejsteru 7 klassa Karlu Berdu na upotreblenie pa sudov s podrobnoj onoj opisaniem i risunkami SPb., 1818. See [2, p.272], and also PSZ. .34. 27120. pp.854-5. This privilege is abundantly quoted in: [2, pp.226-7, 247-8; 7, pp.44-7; 11, pp.176-8; 17, pp.60-1; 18, pp. 1-2, 5]. 25. [2, pp.248-9] with ref. to: CGI, f.652 , op.l, d.1095. See also [5, p.96, 98]. 26. [2, p.248]. See also [12; 29]. 27. [2, p.251; 12].Virginskij makes a mistake. Baird's list contains 16 steamships. See [5, p.98] with ref. to: GIA, f.1285, op.4, d.l, ff.124-25 and [17, p.67]. As for the 'licenced' vessels, Baird did not include them randomly, but with full juridical right. 28. In 1822, Evreinov separated himself and redeemed to Baird his rights with respect to the Volga, the Kama and the Caspian sea [5, pp.98-100; 7, pp.55-7; 10; 11, p.179; 17, p.67; 18, p.6;20]. 29. [2, p.249; 4, no.7, p.54; 7, p.49; 18, p.2]. 30. In all the books we met the date is given erroneously: June 1816 [2, pp.235-6; 4, no.7, p.55; 7, p.48; 18, p.2]. This leads to serious historical distortions. First, it led to the total conclusion about the conservatism of Administration of ways of communication and of its leader, foreigner Devollant. Second, it contributed to the overlooking of the fact that the first fundamental theoretical work on the steamships [30] in Russia was prepared (end of June 1815-January 1816) simultaneously with the tests of thefirststeamship. Moreover, Bazaine, the author of this work, and Baird, the creator of the steamship, acted together. To our mind, this collaboration explains most probably the fact that already in 1818-19 Baird abandoned the flywheel and began to manufacture dual (or two-cyclinder) steam engines for ships (see [4, no. 10, p.49]). Bazaine quotes Baird's machines in his memoirs (pp.54, 60, 67). However, the error in dating occurs because of the phrase from the preface to Bazaine's work: '... le General De Volant invita dans le courant du mois de Juin de l'annee derniere; tous les officiers du genie des communications interieures; a s'occuper des moyens de perfectionner cette navigation' [30, pp.2-3]. The quoted date is simply correlated with the date on the title of the book - 1817, and so without checking through archives when the work on the manuscript was really carried out. In actuality, during January 1816 it was alreadyfinished.For more details see in our work [1], For the analysis of Bazaine's work, see [30]. See also [31; 32]. 31. [1, p.69; 2, p.235; 7, p.48; 11, p.177; 13, p.104; 14, p.80; 18, p.2; 30, pp.2-3]. 32. On this theme see also [ 5, pp. 103-4]. In the early 1860s, the vessels navigating on the Volga numbered 130 towing, 25 capstan and 40 passenger steamships [9].

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INTRODUCTION The investigation is focused on the patents acquired by Paul Piccard on his thermo-compression evaporation plant in Europe and the USA in the last quarter of the nineteenth century. To put these technical facilities into perspective, the technological situation in the nineteenth-century salt industry - including references to the development of evaporating pans is described on the one hand, and the patent transfer in the context of the high-industrialization era and - what is seen in the following as being more dominant - of the protoglobalization era is analysed on the other. In the nineteenth century, England, Austria, Germany, France and Switzerland were among the nations spearheading technological development in the salt industry.1 This development was encouraged in particular by the ever-increasing demand for salt by the continuously developing chemical industry during the industrialization era. In the second half of that century the leading salt production facilities were therefore characterized by a wide variety of inventions and their implementation in production processes. Parallel to the development in Western and Central Europe, there was an upswing in the US salt industry in the second half of the nineteenth century, promoted on the one hand by technology transfer, e.g. of the panevaporation technique, from Europe to the USA, and on the other by autonomous designs.2 Among the leading European inventors of thermoHistory of Technology, Volume Twenty-four, 2002

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compression evaporation plants was Professor P. Piccard of Geneva. An application for a patent on his invention, known in Germany as imperial patent no. 191 dated 4 July 1877, was filed by Piccard in the USA in 1879 under no. 219874 with the selfsame technical drawings. However, Piccard's patent application was filed - a reflection of its quality - not only in Germany and the USA but also in Austria,3 England4 and - first of all - in France.5 We are thus dealing here with the very first known international patent for a salt production facility - a leading economic sector in the nineteenth century. It is these circumstances that ultimately give rise to the linking of the transfer topic with the globalization issue and here specifically, on account of its originating from the last quarter of the nineteenth century, with a form of protoglobalization. Focusing on the patent transfer of the thermo-compression evaporation plants, the paper is aimed at throwing light on the potential impact of this global invention, one which was known in specialist circles in Western Europe, and on evaluating it as transatlantic technology transfer in the protoglobalization era. The nineteenth century is viewed primarily in the context of Western European and North American industrialization. 6 Originating from England, the establishment and further development of the manufacturing technology first made its way into steam engine-supported production techniques, e.g. in the steel, the coal-mining and the clothing industries or in the chemical industry in Western and Central Europe and in the USA.7 With increasing industrialization in the second half of the nineteenth century, the development in Western Europe and the USA gained impetus, while new technologies were developed in many different countries with reference to applied sciences. The initially dominant technology transfer originating from England gave way to a diversity of transfer networks varying widely in both their starting points and their endpoints. 8 It is to this phase in the last quarter of the nineteenth century that the patent transfer investigated here, which covered France, Switzerland, Austria, Germany, England and the USA, is to be assigned. Although the patent transfer for Piccard's evaporation plant represents technology transfer at the peak of the high-industrialization era,9 the focus here is to be simultaneously and even primarily on classification of the patent transfer in the context of the protoglobalization era. Globalization has been taking precedence over industrialization since the late twentieth century and formed its very roots at the peak of the industrialization era.10 A GLOBAL PATENT IN THE CONTEXT OF GLOBALIZATION AND PROTOGLOBALIZATION The term 'globalization' dates back to the 1970s, when it was first used in connection with satellite photos of the 'blue planet' earth. Since then, the word has been used to designate numerous phenomena in this world. However, one main definition domain has been taking shape for some years, with globalization embracing an area that can be circumscribed with History of Technology, Volume Twenty-four, 2002

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the emergence of global markets for products, capital and services. The former President of the Federal Republic of Germany, Professor Roman Herzog, defined it in these terms: 'Globalisierung hat nicht nur einen Weltmarktfur Outer und Kapital, sondern auch einen Weltmarkt derldeen geschaf fen\n [Globalization has created not only a global market for goods and capital but also a global market of ideas.] To this effect, the Commission of Globalization defines the facets of the term from the analysis of the early twenty-first century: At the beginning of the twenty-first century the world is in a unique and unprecedented situation. In every facet of human endeavour, from science to commerce, religion to culture, and from politics to media, human interactions are increasingly interrelated, mutually interactive, and occurring at a global level. This process of crosssectoral and international interaction is known generally as globalization, particularly in financial and business spheres where market economics, combined with advances in science and technology, have literally subsumed the entire world into a single increasingly integrated system with profound cultural, environmental, and societal implications.12 In contrast, Ulrich Beck defines globalization from the scientist's point of view while specifying the future direction of research: 'Globalisierung ist demgegeniiber (gemeint ist hier Globalismus) der Prozefi, den man auch empirisch in seiner Vielfalt untersuchen mufi - zu einem bestimmten Zeitpunkt, an einem bestimmten Ort, mit einer bestimmten Dichte der transnationalen, transkulturellen Beziehungen, die entstehen, der transkulturellen Rdume, die sich offnen. Globalisierung heifit beispielsweise eine verscharfte Bedeutung des Lokalen und des Ortes, keineswegs nur eine Delokalisierung, sondern auch eine Relokalisierung. Es ist vor allem so, dafi Globalisierung auch am Ort, in der Biographie, also im Detail untersucht werden muff.15 [In comparison (with globalism), globalization is the process that has to be investigated empirically too in its diversity - at a specific time, in a specific place, with a specific density of transnational, transcultural relationships that emerge, of transcultural areas that are opened up. Globalization means, for example, an intensified significance of local matters and of the location, by no means a mere derealization but also a relocalization. The fact is above all that globalization has to be investigated at the location, in the biography, and thus in the detail too.] The present author shares this view, since it does indeed seem essential to explore the implications of the term on a broader basis. The present paper focuses on the early globalization era. However, this is where the problems start, because there is a tendency to refer to anything transnational over the centuries as globalization. For instance, there is a section at the 34th Annual ASECS/ISECS Meeting 2003 in Los Angeles entitled 'Globalizing Eighteenth-Century Studies', in which - to quote but one topic - issues such as 'how paradigms of globalization enable us to re-interpret eighteenth-century historical data' are to be discussed. An investigation of these issues from the angle of what can be History of Technology, Volume Twenty-four, 2002

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subsumed under globalization is thus only at the start of what promises to be intensive historical research. Yet the historical timescale over which globalization extends has yet to be defined. The term 'protoglobalization' will therefore be introduced by me with reference to the epoch comprising the last quarter of the nineteenth century, when the industrialization era in Western Europe was at its heyday and Piccard was pressing forward with the transatlantic patent transfer of his invention with global intent. To date it has not been used in this context in the literature. Protoglobalization is taken here to mean the early phase of globalization, whose inception is understood to have been during that very period, in the last quarter of the nineteenth century. And it is to this period that Piccard's global patent, as it is referred to here, is to be attributed, because there is documentary evidence of a relevant patent application having been filed in the four most important industrial countries towards the end of the nineteenth century. Of course, fixing the late nineteenth century as the protoglobalization era only on the strength of one instance of global patent transfer would not be appropriate. However, consideration of the research results relating to the 'three waves of globalization' (Figure 1) in this context, with the three parameters 1. Immigrants to the United States, 2. Merchandise exports/wo rid GDP, and 3. Foreign capital stock/developing country GDP as correlated clearly reveals that the first of these three waves of globalization covers the period from 1870 to 1914. The patent transfer of Piccard's thermo-compression evaporation plant as the transfer of a production right thus took place in the early days of the first identified wave of globalization. Figure 1 Three waves of globalization Thousands Wave 3 30%

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This - or so the author hopes - enables protoglobalization to be distinguished conceptually from industrialization because, according to David Landes, industrialization is defined as 1. the substitution of machines - rapid, regular, precise, tireless - for human skill and effort; 2. the substitution of inanimate for animate sources of power, in particular, the invention of engines for converting heat into work; 3. the use of new and far more abundant raw materials, in particular, the substitution of mineral ... These substitutions made the Industrial Revolution.14 By contrast, world trade, global capital flows, labour migration or transfer of rights - the list is incomplete - are not among the classical topics of industrialization, although there is evidence of industrialization processes and globalization processes having been inextricably linked since around 1870. THE SALT INDUSTRY IN EUROPE AND THE USA A clear-cut increase in productivity in the salt industry is recorded in the nineteenth century both in Europe and in the USA.15 This increase is to be seen in the narrow context of the technical development taking place in the form of repeated upsurges of innovation. While the traditional systems - graduation works, open salt-boiling pans and brine-pumping techniques - were being further developed and implemented at the European evaporation salterns on the one hand, new techniques - steam-engine deployment, deep-well sinking, shaft construction, vacuum pans - were paving the way for a sweeping change in the structure of the salt industry on the other. Whereas the evaporating saltern with thorn graduation works over 1,000 metres in length had still been dominant in Europe in the early eighteenth century, rock-salt mining had taken the lead in terms of quantity by the beginning of the twentieth century.16 In contrast to Europe, where salt production underwent a sustained upswing in the eighteenth century with the introduction of state-of-the-art technology, the USA salt industry did not experience its heyday until the nineteenth century. This is confirmed primarily by the production figures for the states of New York, Michigan and Ohio.17 The predominant saltboiling technique in the early nineteenth century was the open-boiling process with open-pan systems that had been in use in Europe for centuries. An innovative technique then developed in the USA was the 'grainer system', a special steam-heated system.18 In addition, vacuum pans were reaching the mass-production stage by the 1890s, whereas this technique was not in use in Europe until the turn of the century. Steam vats in the salt industry Steam vats in trial designs were produced in increasing numbers in the 1860s and 70s, both in England and Germany and in the USA. Let us start with England by taking a look at a piped steam evaporation vat in Meadowbank near Winsford. This vat was made of planks and had two stacked sets of pipes History of Technology, Volume Twenty-four, 2002

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running along one side of the vat, with a total of 16 pipes measuring 7.5 cm in diameter. The vat itself had a rectangular base measuring 13 x 3.3 m with a depth of 0.7 m. The heat transmission problem was efficiently solved here, since the pipes were completely immersed in brine and the crystallizing salt was deposited not on the pipes but on the base, especially on the pipe-free side of the vat. Any lime deposits on the pipes flaked off of their own accord after a certain time. The pipes in the vat were arranged with a 10 cm incline in the direction of the rising steam to allow the condensation to run off. The output recorded with this vat was 8 tons per week, and the weekly salt extraction was reported to be exceptionally simple.19 In the German-speaking region, the development of piped evaporating vats was indeed noted. However, the dominant technique in the third quarter of the nineteenth century tended to be that of preheating brine in separate brine preheating devices. This system was in use, for instance, in the Austrian saltern of Ischl, where the temperature of the extracted vapour - in contrast to the practice in England, this consisted of furnace gases from the evaporation vat - was, however, only 43°C and the preheating apparatus was a complex piped structure,20 or in the Reichenhall saltern in Germany (Figure 5),21 where the preheating apparatus was located beside the vapour extraction pipe of the evaporation vat. Yet Heinrich Schickhardt had drawn precursors of this technique with pipes for preheating the brine as early as 1634 in conjunction with a vat design.22 In the USA, on the other hand, we find a development displaying all the characteristics of running parallel with England but showing clearly at the same time that reference was indeed made to the developments in England. The system on which the described Meadowbank evaporating vat is based is to be found, for example, in the US patent (Evaporating Pan) granted to F.A. Lord of New York in 1865.23 The official patent gazette shows an open evaporating vat and a boiler located beside the vat, as well as a pipe running from the boiler to the vat and in an arc over the pan base back again to the boiler. Lord describes his invention as follows: The boiler A being supplied with the fluid to be evaporated, and the fire started, the circulation in the boiler, after the fluid becomes sufficiently heated and expanded, will cause the fluid to pass through the pipe E into the vat, and thence, as shown by the arrows, through the vat to the pipe F and through said Pipe back to the boiler thus subjecting the fluid first to a degree of heat and expansion, and then exposing it to the external atmosphere in a shallow or thin strata, where the vapor may freely escape, and thence back to the boiler to be reheated and re-expanded ,24 There are other references too to the use of piped evaporation vats in the USA. For instance, a vat whose design resembled that at Meadowbank was in use before 1880 at the Buffalo Salt Co. salt-boiling works in the state of Michigan. The Michigan vat comprised two wooden pans, one of which had a length of 41 m with five steam pipes with a diameter of 0.1 m passing through. This first pan was connected through an overflow with a second pan of equal length but lesser width, which also had steam pipes passing History of Technology, Volume Twenty-four, 2002

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through and in which the salt was crystallized. The steam used for this purpose was generated during the day by steam engines used for the sawmill and at night by a steam boiler. The length of the piping system in the vat ensured good heat utilization until the steam condensed completely in the pipes. Comparable piped-steam vat designs were also in use before 1880 in Virginia, where - with obviously smaller pans - a technique with gland and stuffing boxes had been developed. This enabled the pipes to be turned upwards while the salt was being withdrawn from the vat, so that the saltern workers were not hampered in their work.25 Use of the vacuum technique in the evaporating process The use of piped steam vats and of pipeline-based brine preheating devices represented only a transitional phase between salt production in open wood-fired, coal-fired or gas-fired salt-boiling pans and the use of vacuum evaporators or thermal compression plants, as brine-evaporation facilities are termed today. As early as 1900, Franz Adolf Fiirer, director of the important Schonebeck saltern, came to the logical conclusion that the vacuum technique was more efficient than other evaporation methods. 26 The vacuum-process evaporating technique was developed in the nineteenth century but had to wait until the early twentieth century for its breakthrough. Important developments of this innovative technique are documented in the sugar industry, where the use of vacuum evaporators in Liverpool is recorded from 1813 onwards.27 An early patent for this method in salt production was granted in 1839, also in England, to John Reynolds. However, it is not yet known whether this technique led to the construction of a corresponding plant. Although this technique was deployed in the USA in the 1880s, the first vacuum plant was not put into production by the Salt Union in England until 1906. By 1912 another plant of this type had been added, with the Salt Union having at its disposal in that year the impressive number of 684 open evaporating pans in addition to the two vacuum plants.28 In Germany and Austria, it was only towards the end of the nineteenth century that the debate on the pros and cons of the vacuum technique for salt evaporation got under way. In this context Carl Baltz, one of the leading saltern specialists of that period, stated: Tn recent times a profusion of rather odd salt-production contrivances have been invented and patented, which ... in the fewest cases were able to make inroads into practical application'.29 Even so, patents for vacuum-type evaporating plants are known to have been granted, for example to Anton Vogel of Hallein and to Freiherr von Bechtolsheim of Munich in 1882, to the trade union in Aschersleben in 1885 and to A. Knoop of Minden in 1887. Baltz referred more positively to the Rittinger-Piccard apparatus which was in use at the Swiss saltern of Bex as early as the 1870s.30 One crucial precursor of the vacuum evaporator was this very evaporation apparatus designed by Rittinger in the 1850s and named after him. This evaporator was available for trial purposes at the Austrian saltern of Ebensee in 1856 and 1857. It was based on an evaporation boiler A with a History of Technology, Volume Twenty-four, 2002

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height of 8 ft and a diameter of 4 ft, which tapered to a point at the base and had a cast-iron dome at the top. Other features were a steam pump and a hollow cylinder in the boiler A. During operation, the salt from the brine crystallized, was deposited in the tapered base of the boiler, and could be run off from there into a channel by turning a tap. At the same time, the boiler was filled with fresh brine by means of an intake pump. However, the very first tests revealed the shortcomings of the system: the crystallized salt failed to run off completely but tended to form a solid crust on the inside wall of the boiler base. In view of the lack of knowledge about process temperatures and the efflorescence of gypsum particles from the brine at more than 100°C, these trials were doomed to failure.31 Let us now turn our attention to the development of Piccard's thermocompression evaporation plant, which is well documented by the patent specifications received from France, Austria, Germany, England and the USA. PICCARD'S SALT PRODUCTION PLANTS Paul Piccard, from whom no personal documents have been found to date, who is described on the one hand as an engineer32 and on the other as a professor in Lausanne,33 but who, according to the university archivist in Lausanne, did not lecture at the Academy, the predecessor of the present-day University, designed from 1876 onwards, initially as the first prototype, an evaporation plant which had inside the cylinder C a closed vessel A presenting a large surface area34 (Figure 2), and just a few months later what is referred to as the lens-type apparatus for brine evaporation35 (Figure 3). This apparatus, which was exhibited in a modified and improved form at the 1878 World Exhibition in Paris, ultimately found its way into the relevant German literature as 'Piccard's Abdampfapparat'36 (Piccard III). The patent applications in France, England, Germany and the USA were subject to two additional modifications, for which design documents dating from 1877 onwards exist. On the one hand, it is a further development complying largely with the lens-type apparatus and referred to here in the methodology as Piccard la37 (Figure 4); on the other, it is a precursor of Piccard III. This precursor is given the name Piccard II38 (Figure 5), because it displays clear-cut further developments in design compared with Piccard I. Finally, Piccard's thermo-compression evaporation plant (Piccard III, Figure 6), which he presented at the World Exhibition, was a complex system. The mode of operation was that the brine heated from the vertically positioned boiler A to a temperature of 118°C and subject to a pressure of 2 bars was depressurized on entering the horizontally positioned boiler A and the salt could then crystallized from the brine.

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Figure 2 Piccard O: Apparatus for Evaporating Saline Solutions PfflVIUARCHIV.j

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Figure 3 Piccard I: Apparatus for Evaporating Saline Solutions HM4

6 A~± "I*

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Figure 4 Piccard la: Apparatus for Evaporating Saline Solutions

Patented Sept. 2 3 , 1879.

JFig-5?

TYifne&ses: 07-M

JOnventor:

'ft

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Figure 5 Piccard II: Apparatus for Evaporating Saline Solutions

y

i

Source: French Patent No 113224, certificat d'addition 26 November 1877 and British Patent No 3109, Specification 6 August 1878. History of Technology, Volume Twenty-four, 2002

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Figure 6 Piccard III: Apparatus for Evaporating Saline Solutions

Source: Imperial Reich Patent No 4689, 26 September 1879 and US Patent No 219.874, 23 September 1879. Excursus: Functional characteristics of Piccard's evaporation plants The description of the lens-type apparatus (Piccard I) is based on the patent application filed by Piccard himself on 9 January 1877 at the Patent Office in London: 'Improvements in the Mode of Evaporating Saline Solutions, and in Apparatus for that Purpose. My Invention consists in evaporating saline solutions of any sort under conditions such that the salts which separate from the liquid by evaporation can be removed in a continuous manner and without putting the interior of the apparatus into communication with the atmosphere. The apparatus is composed of a cylindrical boiler C surmounted by a dome D, in witch there is an outlet aperture F'. In the bottom of the cylinder C there is an outlet orifice E, at which is attached the vertical tube T, which at its lower end dips into the wooden tub B. The tube T is furnished with two stop valves V and V placed one over the other, and with a space S between them. In the interior of the cylindrical History of Technology, Volume Twenty-four, 2002

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boiler C there is a closed vessel A presenting a large surface area. This vessel may be of any other form presenting a large surface in a small space. The boiler C is furnished with an orifice G for the admission of the liquid to be evaporated. The vessel A communicates with the exterior by means of two tubes V and t {see the section Y, Y,); one of the tubes T' is connected with the upper part of the vessel A, the other t is connected with the lower part of the same vessel. The valve V being closed, steam at a temperature above that of the liquid is admitted by the pipe T' into the vessel A. The vessel A being thus heated imparts heat to the liquid to be evaporated. The vapour risingfrom the solution escapes by the orifice F, whilst the waterfrom the condensation of the steam contained in the vessel A escapes by the tube t. During the operation care is taken to maintain the level of the solution, so that the vessel A shall be just covert by the liquid. If the nature of the salt be such that during the evaporation it adheres to the surface of the vessel A. I adopt the following means to detach it: Instruments, which I will call 'scrapers', to which a slow movement is imparted pass continually over the exterior surface of the vessel A. According to the form of this vessel A the movement of the scrapers will be circular, rectilinear, or otherwise ... '39 A further improvement (Piccard I a) undertaken by Piccard concerned the revolving design with the angle irons U and the scrapers R. Whereas the rotary movement of the first apparatus, Piccard I, for discharging the salt was executed by the gear wheel N located in the container C and an annular gear on the external circumference of M, Piccard generated the rotary movement by means of a shaft positioned vertically at the centre of the apparatus in his first modification. In this way he improved the concentricity of the scrapers.40 Finally, Piccard's thermo-compression evaporation plant (Piccard III), which he showed at the World Exhibition, represented a clear-cut further development to a complex facility that is outlined below and consisted of the following components: 1. the horizontally positioned boiler A' with a rotating screw that transported the crystallized salt to the outlet aperture F, where it could then be removed from the pipe located below; 2. the heating boiler A with vertically positioned pipes; 3. the intermediate vessel R with pump; 4. the preheating apparatus S; 5. a compressor not shown in the drawing; 6. and a condensation receptacle x. In the preheating apparatus S the brine is preheated with condensed water from the steam chamber B and flows from there into the boiler A'. The brine circulates between the boilers A and A on its way to the intermediate vessel R. Steam emerging from the boiler A' at a temperature of 100°C and a pressure of 1 bar is heated and compressed, and is forced at a pressure of 2 bars into the chamber B of boiler A, where the brine is heated to 118°C. The compressed, 118°C hot brine then flows into the boiler A', where the pressure and the temperature are lower. In this process, the brine is converted partly into steam, and emerges partly, when the pressure History of Technology, Volume Twenty-four, 2002

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is reduced to 1 bar, from the supersaturated brine solution as crystallized salt, which is transported by the feed screw to the discharge point F. The preliminary stage, Piccard II, differed from the ultimate design in that the intermediate vessel R, which permitted improved process control, was still missing.41 The patent applications in France, England, Germany and the USA, and the transfer of the patent rights The prototype of Piccard's evaporating apparatus (Piccard 0) was first provided with a description and drawing on 19 February 1876, and a patent on it was applied for in Austria just under one month later, on 16 March 1876. The first modification of his apparatus was then patented in France under patent no. 113224 dated 6 June 1876. Piccard filed the patent application under his own name and address in Paris and described his device as an 'invention pour les perfectionnements dans les moyens d'evaporation des dissolutions salines'. As with all his patents, descriptions and drawings were attached to the patent application. He had attached the drawing referred to here as Piccard I. Only just over a year later - on 26 November 1877 - he received in Paris a 'certificat d'addition au brevet d'invention de Quinze ans pris le 6 Juin 1876 pour les perfectionnements ...' for a modified design (Piccard II) with a horizontally positioned crystallization boiler. Even before Piccard filed a supplementary application, which was then granted on 26 November 1877 in Paris, he had filed patent applications in England and Germany. In England he was granted by the Patent Office in London on 9 January 1877 a patent on the same plant for which he had filed a patent in Paris on 6 June 1876. In London he submitted in a supplementary application a modified design of his Piccard I plant, which had also been patented on 7 July 1877. This was the Piccard la design. Almost to the very day on which the supplementary patent in London is dated, an Imperial Reich patent with the number 191 was issued in Germany on 4 July 1877 in the names of Schaffer and Budenberg in Magdeburg. This contains exactly the Piccard la drawing but fails to mention the name Piccard. The fact is rather that Schaffer and Budenberg refer to themselves in the text of the patent document as 'inventors'. The explanation is that Piccard had assigned here the rights on his invention to the respective producers of the plant. In all events, it was general knowledge in the relevant German literature that the patent granted to Schaffer and Budenberg concerned the Piccard design.42 However, Paul Piccard continued his activity in applying for patents on his constantly improved plant. For instance, Sydney Pitt of Sutton obtained on 6 August 1878 in London a patent on Piccard's design referred to in the present paper as Piccard II. In contrast to the German patentees Schaffer and Budenberg, however, Pitt refers in his patent unequivocally to Piccard: 'A communication from abroad by Paul Piccard, of the City of Lausanne, Canton de Vaud, in Switzerland, Engineer'. What has yet to be clarified in this context is whether he acquired the rights of use.43 History of Technology, Volume Twenty-four, 2002

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Nonetheless, this is likely to have been the case, since Piccard had previously assigned his patent rights in Germany too. However, the fact that Piccard continued to work together with his patentees is reflected in a further patent granted to Schaffer and Budenberg on 26 September 1878, covering the complete, perfected Piccard III plant. Following his successes in Europe, Piccard ventured across the Atlantic one year later and was granted there on 23 September 1879 patent no. 219,847 for his plant under the title 'Improvement in processes and apparatus for evaporating saline solutions'. As he wished to have his entire patent developments covered in the USA, he filed an application on his apparatus with the descriptions and drawings of the Piccard la and III designs. All this demonstrates that Piccard not only drew up significant technical designs as an engineer and developed them in various stages to production standard, but that he also went to equally intensive efforts to secure and market his invention worldwide. Piccard's plant at the 1878 World Exhibition in Paris The fact that the thermo-compression evaporation plant (Piccard III) was naturally on show at the 1878 World Exhibition in Paris44 fits approriately into the impression that we have gained so far of Piccard. The plant had been constructed by Weibl, Briquet & Company of Geneva. The special benefit that was to be documented with the new plant concerned a substantial reduction in the amount of fuel required for salt evaporation to be achieved with the thermo-compression technique. The lively interest aroused by this plant in the relevant German literature is reflected in the numerous publications in all major technical yearbooks and journals. As early as in volume 6, 1878 of Dingler's Polytechnisches Journal [Dingler's Polytechnical Journal], the plant is discussed in detail,45 though initially with a less than positive response. For example, the author comes to the following conclusion: 'Im giinstigsten Falle, scheint uns, wird man mit dem betreffenden Apparate eben das leisten, was bereits mit der viel einfacheren Rittinger'schen Construktion [eine Anlage zur Siedesalzgewinnung aus den 1850erjahren, der Verfasser] erzielt worden ist'.46 [In the most favourable case, as we see it, one will achieve with the apparatus concerned exactly what has already been achieved with the far simpler Rittinger design (a salt evaporation plant dating from the 1850s.)47] Yet only half a year later, the original verdict was thoroughly revised in the same journal. Under the heading 'Mittheilungen von der Weltausstellung in Paris 1878' [Reports from the 1878 World Exhibition in Paris], the following assessment was made with reference to the original one: 'Da indes die Darstellung in Folge mangelhafter Unterlagen zu einem abfdlligen Urtheile fiihrte, so kommen wir auf diesen Apparat um so lieber nochmals zurilck, als uns die Firma Schaffer und Budenberg in Buckau-Magdeburg, welche das Ausfiihrungsrecht fur Deutschland erworben hat, in die Lage setzte, hier einen zutreffenden Bericht ilber den interessanten Piccard'schen Abdampfapparat zu veroffentlichen .48 [As the description led to a derogatory verdict on account of a lack of documents, we are all the more pleased to return once again History of Technology, Volume Twenty-four, 2002

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to this apparatus, since the firm Schaffer and Budenberg in BuckauMagdeburg, which has acquired the right of execution for Germany, enabled us to publish here an accurate report on Piccard's interesting evaporation plant.] A similarly positive verdict was also reached by Schroecker in the Zeitschrift fur das Berg-, Hiitten- und Salinenwesen im Preussischen Staate [Journal for the Mining, Metallurgical and Saltern Industries in the Prussian State] published in 1879 by the Ministry of Public Works, in which the author underlines the economic relevance of Piccard's thermo-compression evaporation plant with detailed production tables and shows that Piccard could produce 3,000 kg salt per day on average with his plant. The quantity of coal required for this process was only about 150 kg. His final conclusion is: '... so kann dennoch dem neuen Verfahren eine hohe wirthschaftliche Bedeutung nicht abgesprochen werden, so dass die allgemeine Einfuhrung desselbenfur die Darstellung von Feinsalz wohl nur eine Frage der Zeit sein durfte ,49 [... the new process can nevertheless not be disputed to be of high economic significance, so that the general introduction of this for the production of fine salt should indeed only be a question of time.] Overall, the positive verdicts are predominant in the literature. Evidence of constructed plants The first Piccard plant was built at the Bevieux saltern near Bex in the Swiss canton of Waadt. When Balzberg visited the saltern and recorded production data in 1879, he wrote that Piccard had had his plant in operation 'for quite some time'.50 In this context he stated that the socalled lens-type apparatus (Piccard I) had not stood the test, because after only a short time the gypsum components in the brine had formed a hard deposit on the lenses of the apparatus, preventing the plant from continuing to function. In contrast, he gave a positive report on the further development, Piccard III, which, subsequent to his journey to Bevieux, was set up in an enlarged design from 1881 at the Austrian saltern of Ebensee and tested by a commission. Overall, Balzberg rated the plant in Ebensee as good with respect to its functioning and economy in fuels, but with the restriction that the problems relating to long-term operation were not yet completely solved and that only fine salt could be produced with the plant. However, the demand in the late nineteenth century was primarily for coarse salt, which could be produced without difficulty in technically simple, shallow open pans. The third piece of evidence of a constructed plant relates to the German saltern of Schonebeck. Documentary evidence of further salterns at which Piccard's plant was used has not yet been found.51 Utilization of the international patent in the national context around 1880 In contemporary German technical journals, Piccard's design was hotly debated both in Prussia and in Austria with reference to the German Reich patent.52 At the same time, the presentation of the plant at the 1878 World Exhibition in Paris was noted. Nowhere, however, is there any reference there to Piccard having applied for a patent on his plant in France, History of Technology, Volume Twenty-four, 2002

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England and the USA too. Yet Piccard must have been aware of the differing conditions to which the granting of a patent was subject in the four countries. This is reflected in the fact that he filed his first application for a patent on his invention in France, where a patent was granted only if no patent had yet been granted in another country.53 CONCLUSION Investigations into the diffusion of Piccard's thermo-compression evaporation plant are still at an early stage. Research projects into saltern history as a whole have virtually disregarded the role of technical developments in the second half of the nineteenth century.54 The same applies to the literature on patent history, where saline patents have yet to be investigated in their international context. However, an international patent transfer was documented here. The link between the granting of international patents and the issue of globalization seems clear in the example presented here. The international transfer of rights, as is documented with the example of patent transfer, on the one hand within Western Europe and on the other in transcontinental terms to the USA, indicates that it is not only the topics of trade and capital flows at the focus of historical globalization research but also research into the transfer of rights that can provide a substantial insight into the structure and development of the globalization process including the protoglobalization phase defined here. Table 1 Patents of Paul Piccard in France, Austria, Great Britain, Germany and USA Piccard 0: Apparatus for Evaporating Saline Solutions France Patent No. 111575, 19 February 1876 Austrian Patent No. 25330, 16 March 1876 Piccard I: Apparatus for Evaporating Saline Solutions France Patent No. 113224, 6 June 1876 British Patent No. 92, 9 January 1877 Piccard la: Apparatus for Evaporating Saline Solutions British Patent No. 92, Specification 7 July 1877 Imperial Reich Patent No. 191, 4 July 1877 United States Patent No. 219.874, 23 September 1879 Piccard II: Apparatus for Evaporating Saline Solutions France Patent No. 113224, certificat d'addition 26 November 1877 British Patent No. 3109, Specification 6 August 1878 Piccard III: Apparatus for Evaporating Saline Solutions Imperial Reich Patent No. 4689, 26 September 1879 United States Patent No. 219.874, 23 September 1879

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Appendix 1: Austrian Patent No. 25330, 16 March 1876 (Hand-written patent in German 'Sutterlin' style) Paul Piccard Abdampfungsapparat fur salzhaltige Flussigkeiten 30/6/1876 Geheimzuhaltende Beschreibung und Zeichnung der von mir angezeigten Erfindung eines neuen Apparates zum Abdampfen salzhaltiger Flussigkeiten. Wien am 16ten Marz 1876 Fur Paul Piccard Dr. Eduard Schmidt Beschreibung Eines neuen Apparates zum Abdampfen salthaltiger Flussigkeiten von Mr. Paul Piccard in Lausanne Dieser Apparat besteht aus einem eigenthumlich derart construierten Kessel, dass man damit Salze aus Flussigkeiten durch Abdampfen auf eine continuirliche Weise gewinnen kann, ohne das Innere des Kessels mit der auBeren Luft in Beriihrung zu bringen. Das Aggregat besteht aus einem verticalen cylindrischen Kessel C.C. mit einem domartigen Aufsatz D und einer daran befestigten Kohrenmundung F. Nach unten zu verlangert es sich in form eines Trichters E, an dessen unterer Offnung ein Rohr TT verbolzt ist, welches in einen Holztrog B einmundet - dieses Rohr T ist mit zwei iiber einander eingepassten Schubventilen V 8c V versehen, zwischen welchen der Raum S verbleibt. Im Inneren des Cylinders C ist ein geschlossenes GefaB A mit groBer Beruhrungsflache eingesetzt. Dieses kann, wie aus beiliegender Zeichnung ersichtlich ist, eine rohrenformige Einrichtung, aber auch gerippt, gefurcht, oder eine andere Form haben, wodurch mit Ausname des glatten Loches 8c Deckels eine groBe verticale Flache gewonnen wird. An einer Seite des Kessels C ist eine Wasserwage N und an der anderen eine Rohrenmiindung G zum Einlauf der zu verdampfenden Flussigkeit angebracht. Der Kessel selbst besteht aus Blech, GuB oder einem anderen Metall oder auch aus gebranntem Thon, je nach der Beschaffenheit der zu verdampfenden Flussigkeit und wird von einem nicht warmeleitenden Stoffe od. Korper wie Filz, Stroh, Holz etc. eingehullt. Das Innere des GefoBes A wird nach AuBen durch die zwei Rohren T 8c t in Verbindung gesetzt. Diese gehen durch die Wand des Kessels und sind mittels eines Gelenkes oder AnstoBes dicht damit befestiget. Die eine Rohre T' erstreckt sich bios bis zur Rohre des GefaBes A, wahrend die Andere t bis am Boden desselben reicht. Da die Form des inern GefaBes A sowie dessen Stellung in Bezug zu dem auBern Kessel C nicht von wesentlichem EinfluB ist, so kann man dieselben beliebig andern. Die Flussigkeit, aus welcher man das Salz gewinnen will, wird durch das Rohr G in den Kessel C geleitet und das Niveau derselben nahe auf der Hohe bei N erhalten. Wenn der Schieber V geschlossen ist, lasst man durch das Rohr T' Dampf in das GefaB A mit einer viel hohern Temperatur als die zu verdampfende Flussigkeit hat, einstromen. Das dadurch erwarmte GefaB gibt seine Warme an die Flussigkeit ab, welche verdampft. Der aus der Flussigkeit ausweichende Dampf geht durch die Rohrenmiindung F ab, wahrend das condensirte Wasser durch das Rohr t ablauft. Dieses abflieBende condensirte Wasser, welches in der Regel eine hohere Temperatur hat als die durch das Rohr G zugeleitete Flussigkeit, dient dazu, letztere

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in Schlangenrohren zu erwarmen - ein Apparat, welcher hinreichend bekannt ist & nichts mit dem Gegenstande meiner Erfindung zu thun hat & daher auch nicht illustriert ist. Wahrend der Verdampfung wird das aus der Fliissigkeit ausgeschiedene Salz langs den verticalen Flachen des GefaBes A herabgeleitet und in die Schieber V fallen. Um das Salz von da heraus zuziehen, genugt es, die zwei Schieber V & V abwechselnd zu offnen, wodurch es in den Zwischenraum S und dann in den Holztrog B fallt. Um einen Zutritt der atm. Luft in den Apparat wahrend des Offnens der Schieber zu verhindern, muB man ein fur allemal den Trog B mit der zu behandelnden Fliissigkeit so weit fullen, dass die untere Mundung des Rohres T in dieselbe taucht. Das in den Trog fallende Salz wird mittelst einer Krucke heraus gezogen. Wenn aber das ausgeschiedene Salz derart beschaffen ist, dass es an den Wanden des GefaBes A nach dem Abdampfen anklebt, so wende ich zwei Verfahrungsweisen zum Losmachen derselben an: Die Eine besteht darin, dass ich dem ganzen Apparate eine schnelle & kurz schwankende Bewegung gebe - die Andere, dass ich metallene, an einer Stange befestigte Biirsten in alien Rohren od. Furchen des GefaBes A auf und ab ziehe. Die Stange dieser Biirsten wird durch den Stopfbiichsendeckel, welcher in der Achse am obern Theile des Apparates angebracht ist, eingefiihrt. In diesem besonderen Falle wird der cylindrische Theil des Kessels C bis zu jener Hohe verlangert, welche gleich der des GefaBes A ist. Dieselbe Anordnungfindetihre Anwendung, wenn das innere GefaB A eine andere als die Rohrenform hat. Mit diesem Kessel kann man Salze aus Fliissigkeiten bei groBer Ersparnis an Brennstoff gewinnen. Im Falle man eine natiirliche Wasserkraft zur Disposition hat, kann man die Anwendung eines allenthalben bekannten Systems auf meinen Apparat iibertragen, welches darin besteht, den aus der Verdampfung resultierenden Dampf zur Erhohung seiner Temperatur zu comprimiren. Der Dampf, welcher durch die Rohrmiindung F entweicht, wird durch eine Druckpumpe aufgesaugt und nach der Aufsaugung comprimirt & in das GefaB A zuruckgetrieben. In Folge dieser Compression hat der Dampf in dem GefaBe A eine viel hohere Temperatur als die darin enthaltene Fliissigkeit, wodurch eine continuirliche Verdampfung derselben ohne Brennstoff-Verbrauch erzielt wird. Die verticale Form des Kessels mit den doppelten Schiebern gestattet auch die continuirliche Extraction des erzeugten Salzes ohne Storung und Unterbrechung des Betriebes. Je nach den Temperaturen 8c dem Druck, unter welchem man arbeitet, wird die am Boden des GefaBes A condensirte Fliissigkeit durch das Rohr t entweichen, sei es unter der Einwirkung des inneren Druckes, wenn dieser starker ist als der auBere Luftdruck, sei es durch eine Saugpumpe, wenn ein relatives Vacuum im Apparat besteht. - Im Falle man fiber eine natiirliche Betriebskraft Disponirt, so lasst sich ein System in Anwendung bringen, welches auch schon lange bekannt ist und unter dem Namen 'das Prinzip der vielfachen Wirkungen' in den Zuckerfabriken angewendet wird. Zu diesem Falle verwende ich irgend eine Anzal meiner Kessel batterieweise. Die Erste erhalt in ihrem GefaBe A den Dampf aus einem gewohnlichen Generator undjede einzelne Rohrenmiindung F ist mit dem GefaBe A des folgenden Kessels in Verbindung, mit Ausname der letzten, welche in einen Condensator einmiindet. Mittelst einer gewohnlichen Luftpumpe wird die Luft, - des Condensationswassers - und der condensirte Dampf ausgezogen. Die Pumpe wird gewohnlich durch eine Dampfmaschine in Bewegung gesetzt, deren Dampf mit einer bestimten Quantitat des jenigen Dampfes aus dem Generator in das erste GefaB A iibergeht.

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Was ich nach Vorhergehendem als neu und meine Erfindung beanspruche, besteht in der Combination des von mir beschriebenen & illustrirten Apparates, mittelst dessen man auf eine continuirliche Weise salzige Flussigkeiten in einem geschlossenen Kessel abdampfen und das darin erzeugte Salz aus ziehen kann, ohne dass die Atmosphare mit dem Innern des Kessels in Beruhrung komt. - Ich hebe ferner als wesentlich bei diesem Apparate die Construction hervor, bestehend 1.) Aus dem verticalen Kessel, welcher in einem kleinem Raume eine bedeutende inere Heizflache besitzt. 2.) Aus dem Trichter als Verlangerung nach unten des cylindrischen Kessels. 3.) Aus dem Rohre mit den Schubventilen od. Schiebern, welches als Verlangerung des Trichters in eine Flussigkeit taucht, die zu verarbeiten ist. Es ist selbstverstandlich, dass sowol die Dimensionen als Verhaltnisse meines Apparates je nach den Anforderungen, die man an ihn zu stellen hat, veranderlich sein konnen. Wien, am 16. Marz 1876 Fur Paul Piccard Dr. Eduard Schmidts Appendix 2 : French Patent No. 113224, 6th June 1876 (Hand-written patent) Brevet d'Invention Sans garantie du Gouvernement Le Ministre de 1' Agriculture et du Commerce, Vulaloidu5juilletl844; Vu le proces-verbal dresse le 6 Juin 1876, 3 heures ... minutes, au Secretariat general de la Prefecture du departement de la Seine et constatant le depot fait par le M. Piccard d'une demande de brevet d'invention de Quinze annees, pour les perfectionnement dans les moyens d'evaporations des dissolutions salines. Brevet d'Invention de 15 ans, demende par Mr Paul Piccard de Lausanne (Suisse) disant domicile chez Mons. Maurice Sautter a Paris Perfectionnements dans les moyens d'evaporation des dissolutions salines Perfectionnement a mon Brevet du 19 Fevrier 1876. Mon invention consiste a effectuer l'evaporation des solutions salines quelconques dans des conditions telles qu'on fuisse extraire les sels qui se separent du liquide par l'evaporation d'une maniere continue et sans mettre l'interieur de I'appareil en communication avec l'atmosphere. Cette extraction des sels se fait quelleque soit la pression dans I'appareil, pression qui peut etre superieure ou inferieure a la pression atmospherique. L'appareil se compose d'une chaudiere cylindrique CC surmontee d'un dome D portant une tubuluse F. Le fond du cylindre CC porte un orifice E ; auquel vient se boulonner une tube vertical TT qui aboutil dans une bache en bois B. Ce tube TT est muni de deux sobinets vannes a tiroir V et V superposes et laissant entre eux un espace S. Dans l'interieur du corps cylindrique CC se trouve un vase ferme A a grande surface. Ce vase peut etre a disposition tubulaire ou bien a surface cannelee ou munie de nervures ou bien encore forme de lentilles creuses superposeer comme le represente notre dessin ou de toute autre forme permettant d'obtenir une grande surface dans un volume restreint

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La chaudiere C est munie d'un niveau d'eau ordinaire qui n'ayant rien de particulier n'est pas represente sur le dessin et d'une tubuluse G pour l'entree du liquide a evaporer. Cette chaudiere est enveloppee par un corps mauvais conducteur de la chaleur, tel que du feutre de la paille on du bois. Elle est enfin aussi bien que le vase A en tole, en fonte ou en tout autre metal suivant la nature de la dissolution a traiter. Le vase interieur A, communique avec le dehors ou moyens de deux tubes T' et t (voir la coupe YY). L'un des tubes T", vient aboutir au haut du vase A, l'autre, t, aboutit au bas de ce meme vase. Au reste, la forme du vase interieur A ainsi que sa position par rapport au vase exterieur CC n'.etant pas esentielles, j'entends pouvoir lui donner des formes diverses et appropriees aux differentes cas qui se presentent dans l'lindustrie. Aussi le vase pourrait etre l'espace compris entre la paroi exterieur CC & une double enveloppe interieur lisse ou cannelee. La vanne V etant fermee, on introduit de la vapeur a une temperature plus elevee que la liqueur a evaporer, par le tube T", dans le vase A. Le vase A ainsi rechauffe cede sja chaleur a la dissolution qui s'evapore. La vapeur qui se degage de la dissolution s'echappe par la tubuluse F tandis que l'eau de condensation de la vapeur contenue dans le vase Aj'echappe par le tube t. Pendant l'operation on a soin de maintenir le niveau de la dissolution, de facon a ce que le vase A soit justement recouvert par le liquide. L'eau condensee, qui sort par le tube t a une temperature generalement plus elevee que la dissolution arrivant par le tube G, sert a rechauffer cette derniere dans un serpentin rechauffeur, appareil connu qui n'est pas decrit ici, puisqu'il n'a rien de commun avec l'objet de la presente demande de Brevet. Si la nature du sel qu'on extrait est telle que penant l'evaporation de la dissolution, il adhere aux parois du vase A, voici le moyen que j'emploie pour Ten detacher. Des pieces metalligues que j'appelerai radoirs, animees d'un mouvement lent, passent continuellement sur la surface exterieur du vase A. Suivant la forme adopte pour le vase A le mouvement des radoirs sera circulaire, rectiligne alternatif ou de toute autre nature, suivant lesbesoins de la disposition adoptee. Dans le dessin a joint, j'ai adopte pou le vase A le forme d'un corps de revolution a axe vertical. Dans ce cas le mouvement des radoirs est circulaire. Une roue d'engrenage M placee sur l'axe du vase A porte deux montants U qui sont fixes a leur extremite inferieure aux deux radoirs inferieurs R'R', qui sont d'une seule piece. Entre chaque lentille je ment un radoir R fixe au montant U. Ce radoir a la forme d'un segment de spirale (voir la coupe XX). La roue d'engrenage secoit du pignon N, par l'intermediaise de la poulie P _ de l'arbre O, un mouve- ment lent de rotation. Par ce mouvement les radoirs R enlevent le sel qui se forme sur les parois du vase A et grace a leur forme en pirale, ils sejettent le sel detache on dehors des lentilles. Ce sel vient tomber dans la rigole circulaire Q disposee dans le fond de la abaudiere. La partie inferieure des montants U, qui vient s'engager dans la rigole Q, entraine le sel tombe dans cette rigole , jusque sur l'ouverture E, par ou le sel tombe dans l'ouverture TT. Les radoirs peuvent toucher la surface meme de vase A ou sister constamment a une certaine distance de cette surface. La commande des radoirs n'ayant rien d'essentiel, je me reserve de pouvoir la faire de toutes sortes de manieres. Par exemple, la roue d'engrenage peut etre placee en dehors de la chaudiere, de facon que son axe seul y penetre par un presse etonpes. Le pivot K peut de meme etre remplace par un pivot de turbine exterieur a la chaudiere. History of Technology, Volume Twenty-four, 2002

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Je me reserve de construire les radoirs suivant toutes les dispositions exigees par la forme adoptee pour le vase A et dans le cas ou le sel produit n'adhere pas, je pouvoir supprimer les radoirs. Dans ce cas, le corps cylindrique CC, je termine a sa partie inferieure par un simple entonnoir qui aboutit au tube TT, et le sel, se detachant par son propre froids du vase A, glisse sur les parois de l'entonnoir _ vient tomer dans le tube TT. Quelleque soit la disposition des radoirs, qu'ils soient necessaires ou qu'on les supprime, le sel vient tomber dans le tube TT. Pour l'extraise, dans mettre l'interieur de la chaudiere en communication avec Fair exterieur, il suffit l'ouvrir alter- nativement les deux vannes V & V et le sel, apres avoir sempli l'espace S, vient tomber dans la bache B. Pour eviter l'entree de Fair dans l'appareil, pendant la manoeuvre des vannes, on semplit prealablement _ une fois pour toutes la bache B avec de la dissolution sur laquelle on opere, de facon que rorifice inferieur du tube TT ne soit jamais a decouvert. Enfin le sel qui est tonbe dans la bache B en est retire au moyen d'un rateau. Notre chaudiere permet d'extraise avec une grande economie de combustible, toutes les sortes de sel qu'on extrait de dissolutions. Lors qu'on dispose d'une force hydraulique naturelle, on peut faire l'application a mon appareil d'un principe connu tombe dans le domaine public, qui consiste a comprimer la vapeur resultant de l'evaporation, pour se lever sa temperature. La vapeur qui s'echappe par la tubuluse F est aspiree par ue pompe qui, apres l'avoir aspiree, la refoule et la comprime dans le vase A. Ensuite de cette compression, la vapeur du vase A est a une temperature plus elevee que la dissolution contenue dans la chaudiere et il en resulte une evaporation continue de la dissolution sans depense de combustible. La disposition decrite de la chaudiere et particulierements les deux vannes du tube TT, permettent une extraction continue du sel produit, sans amener de pertubations ni d'interruptions dans la marche de l'appareil. Suivant les temperatures et les pressions avec lesquelles on opere, le liquide condense au fond du vase Aj'echappera par le tube t soit sans I'influence de la pression interieure, si cellui est plus forte que la pression atmospherique, soit au moyen d'une pompe aspirante, s'il y a un vide relatif dans l'appareil. Lors qu'on ne dispose pas d'une force matrice naturelle on fait l'application d'un principe tombe aussi dans le domaine public connu sous le nom de principe des effets multiples employe depuis longtemps dans le sucreries et les distilleries. Je dispose dans ce cas mes chaudieres par batterie d'un nombre quelconque de chaudieres. La premiere recoit dans son vase A la vapeur d'un generateur ordinaire et chaque tubuluse F communique dans le vase A de la chaudiere suivante, sauf la tubuluse F de la derniere chaudiere qui communique avec un condenseur. Une pompe a air ordinaire extrait l'au de condensation, l'au d'injection & Fair ; elle sera en general mue par une machine a vapeur, dont la vapeur d'echappement se rendra, avec une certaine quantite de vapeur du generateur dans le premier vase A ; l'extraction de l'eau condense dans les divers vases A se fait comme dans le cas precedent. En resume par la presente demande de brevet d'invention, je desire m'assurer la combinaison de l'appareil decrit a dessus, qui permet d'evaporer d'une maniere continue les dissolutions salines dans une chaudiere fermee, dont o peut extraire le sel produit, sans mettre History of Technology, Volume Twenty-four, 2002

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l'interieur de la chaudiere en communication avec l'atmosphere, et cela par l'emploi d'un tube d'extraction du sel avec deux vannes superposees ; le dit appareil consistant: en une chaudiere fermee chauffee par la vapeur a une pression convenable, disposee interieurement de facon a presenter de grandes surfaces, dans des conditions de nature a permettre la vaporisation rapide des dissolutions salines et le facile enlevement des sels precipites par la vaporisation, avec adjonction au besoin d'un systeme de radoirs rotatifs alternatifs ou autres pour empecher l'adherence des aux surfaces interieurs de la chaudiere ; et essentiellement en un tube pour 1'extraction des sels precipies muni de deux vannes superposees, partant d'un point convenable du fond de la chaudiere et plongeant dans un bain de la dissolution a traiter; ce tube et ces vannes etant disposee de facon a pouvoir extraire de la chaudiere les sels precipites sans mettre l'interieur de celle-cien communication avec l'air exterieur Le tout ainsi que je l'ai substantiellement deck, et sous reserve des modifications qui pouvant etre indiquees par l'experience et par les circonstances particulieres de l'application quant aux dimensions et proportions de l'appareil quant a la construction de la chaudiere, me reservant en outre de substituer a l'une des vannes ou a toutes deux un chapet ou autre organe semplissant lesraeraesfonctions. Paris 6 Juin 1876 Notes and References For helpful support the author thanks Olivier Robert (University of Lausanne), Catherine Pagis (French Patent Office, Paris), Maria Lampert (Patent Information, British Library, London), Austrian Patent Office Archives, Vienna and Ian Inkster, University of Nottingham Trent.

1. See for example: Anonymous, 'The manufacture of Salt', Scientific American, 1900, 82: 357; F.E. Engelhardt, 'The salt manufacturing of New York', American Chemist, 1872, 2: 458-61; G. Bathe, 'The Onondaga salt works of New York State', Newcomen Society, Transactions, 1945, 25: 17-26; Lindig, 'Die Kochsalzgewinnung in Cheshire und Worcestershire', Zeitschrift fur das Berg-, Hiitten- und Salinenwesen im Preufiischen Staate, 1858, 6: 141-63; P. Martell, 'Das Salinenwesen in England, Vereinigten Staaten, Kolonien', Kali, 1910-3, 4, 6, 7; R.P. Multhauf, Neptune's Gift, A History of Common Salt (Baltimore and London, 1978); P. Piasecki, Technology Transfer in the Salt History of Europe and Africa (Berlin, 1999). 2. See P. Piasecki, 'Innovations in the European and United States salt industry in the nineteenth century: technology transfer or diversified developments?', Book of Abstracts: Scientific Sections, XXI International Congress of History of Science, 2001, Mexico D.F.: 283, and Piasecki, 'The Salt Industry in Europe at the Threshold to the Industrial Era (1780-1880)', 8th World Salt Symposium, M. Geertman, (ed), vol. 2 (Amsterdam, 2000), 1, 133- 8. 3. Austrian Patent no. 25330, 16 March 1876. 4. British Patent no. 3109, 6 August 1878. 5. France Patent no. 113224, 6 June 1876. For a prototype see France Patent no. 111575, 19 February 1876. 6. For instance, see U. Wengenroth, Science, Technology, and Industry in the 19th Century (Munich, 2000). 7. D. Jeremy, Transatlantic Industrial Revolution. The diffusion of textile technologies betw Britain and America, 1790-1830 (Oxford, 1981). 8. W. Konig and W. Weber, Netzwerke Stahl und Strom, 1840 bis 1914 (= Propylaen Technikgeschichte, W. Konig (ed)) (Berlin, 1990). 9. For example, see O. Henderson, Britain and Industrial Europe, 1750- 1870 (Liverpool, 1954); T.P. Hughes, American Genesis. A Century of Invention and Technological Enthusiasm 1870-1970 (New York, 1989); I. Inkster, Science and Technology in History. An Approach to Industrial Development (New Brunswick, 1991). 10. For a discussion, see K. O'Rourke and J. Williamson, Globalization and History (Cambridge, Mass, 1999), or U. Beck, Macht und Gegenmacht im globalen Zeitalter. Neue weltpoli tische Okonomie. Frankfurt am Main (2002), 9. Beck understood globalization as historical transformation. History of Technology, Volume Twenty-four, 2002

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11. F. Faulenbach, 'Globalisierung', Informationen zur Politischen Bildung, 1999, 263: 2. 12. Commission of Globalization: Convening the Community of Stakeholders (State of World Forum). 13. U. Beck, 'Globalismus und Globalisierung', Telepolis: Internet undPolitik, 1997, 3, July: 3. 14. D. Landes, The Wealth and Poverty of Nations (London, 1998), 186. 15. For example, see R.P. Multhauf, Neptune's Gift. A History of Common Salt (Johns Hopkins studies in the history of technology, 1978). 16. P. Piasecki, 'The Salt Industry in Europe at the Threshold to the Industrial Era (1780-1880)', 8th World Salt Symposium, M. Geertman (ed), vol. 2 (Amsterdam, 2000), 1133-8; P. Piasecki, Technology Transfer in the Salt History of Europe and Africa (Berlin, 1999); P. Piasecki 'Die technische Entwicklung der Salzindustrie vom 15. bis 19. Jahrhundert in China und Europa' (in Chinese language), Papers on Science and Technology of China, 4, 2, Zhu Guangya and Zheu Guangzhao (eds) (Beijing, 1998). 17. R.P. Multhauf, Neptune's Gift. A History of Common Salt, Johns Hopkins studies in the history of technology (1978), 120; E.W. Parker, 'History of salt making in the United States' 18th Annual Report of the USGS (Washington, 1897), Pt 5, 1288-313. 18. CD. Litchfield, 'Innovations in Salt Evaporation Technology: US patents 1795-1845', 8th World Salt Symposium, M. Geertman (ed), 2 (Amsterdam, 2000), 1113-8. 19. C. von Baltzberg, 'Die Siedesalz-Erzeugung von ihren Anfangen bis auf ihren gegenwartigen Stand, nebst einem Anhange iiber Seesalinen', Zeitschrift fur das Berg-, Hiittenund Salinenwesen im Preufiischen Staate, 1896, 44: 250. 20. Ibid., 256. 21. Ibid., 258. 22. P. Piasecki, 'Quantifizierbare Prozesse bei der Einfuhrung neuer Techniken im Salinenwesen urn 1600', Der Anschnitt, 1997, 49: 10-15. 23. Evaporating pan by FA. Lord. US Patent No 47.966 on 1886. 24. Ibid. 25. C. von Baltzberg, 'Die Siedesalz-Erzeugung von ihren Anfangen bis auf ihren gegenwartigen Stand, nebst einem Anhange iiber Seesalinen', Zeitschrift fur das Berg-, Hiittenund Salinenwesen im Preufiischen Staate, 1896, 44: 253. 26. F.A. Furer, Salzbergbau und Salinenkunde (Braunschweig, 1900), 912. 27. J. Morrison, The Development of the Vacuum Process for the Evaporation of Brine, Sa Museum Publication (Cheshire). 28. Ibid. 29. C. von Baltzberg, 'Die Siedesalz-Erzeugung von ihren Anfangen bis auf ihren gegenwartigen Stand, nebst einem Anhange iiber Seesalinen', Zeitschrift fur das Berg-, Huttenund Salinenwesen im Preufiischen Staate, 1896, 44: 293. 30. Ibid., 314. 31. G. Hattinger, 'Die Entwicklung der Thermokompression zur Gewinnung von Salz aus Sole in Osterreich', Festschrift fur Rudolf Palme zum 60. Geburtstag, W. Ingenhaeff, R. Staudinger and K. Ebert (eds) (Innsbruck, 2002), 245-51. 32. British Patent, no. 3109, 6 August 1878. 33. C. von Baltzberg, 'Die Siedesalz-Erzeugung von ihren Anfangen bis auf ihren gegenwartigen Stand, nebst einem Anhange iiber Seesalinen', Zeitschrift fur das Berg-, Hiittenund Salinenwesen im Preufiischen Staate, 1896, 44: 314. 34. France Patent no. 111575, 19 February 1876 and Austrian Patent no. 25330, 16 March 1876. No reference has been found to date in the German-language literature to the Austrian patentfiledon 16 March 1876 and granted on 30.6.1876. 35. France Patent no. 113224, 6June 1876 and British Patent no. 92, 9January 1877. 36. Imperial Reich Patent no. 4689, 26 September 1879. 37. British Patent no. 92, Specification 7 July 1877; Imperial Reich Patent no. 191, 4 July 1877 and United States Patent no. 219.874, 23 September 1879. 38. France Patent no. 113224, certificat d'addition 26 November 1877 and British Patent no. 3109, Specification 6 August 1878. 39. British Patent Office, Patent no. 92, 9 January 1877. 40. Imperial Reich Patent no. 191, 4 July 1877. 41. Imperial Reich Patent no. 4689, 26 September 1879.

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42. S - 1, 'Piccard's okonomisches Abdampfverfahren von Weibl und Briquett in Genf, Dingler's PolytechnischesJournal, 1878, 230: 66. 43. The engineer-agent Sydney Pitt acted in a relatively small way for American, French and Dutch patentees registering in England. The author thanks Ian Inkster for this information. 44. S -1, 'Ueber den Piccard'schen Apparat nach Mitteilungen von der Pariser Weltausstellung', Dingler's Polytechnisches Journal, 1879: 231. 45. Ibid., 476. 46. Ibid., 476. 47. G. Hattinger, 'Die Entwicklung der Thermokompression zur Gewinnung von Salz aus Sole in Osterreich', Festschrift fiir Rudolf Palme zum 60. Geburtstag, W. Ingenhaeff, R. Staudinger and K. Ebert (Innsbruck, 2002), 245-66. 48. S -1, 'Ueber den Piccard'schen Apparat nach Mitteilungen von der Pariser Weltausstellung', Dingler's Polytechnisches Journal, 1879, 231: 211. 49. Schrocker, 'Das Piccard'sche Verfahren zum Abdampfen der Soole', Zeitschrift fiir das Berg-, Hiitten- und Salinenwesen im Preufiischen Staate, 1879: 143. 50. C. von Baltzberg, 'Die Siedesalz-Erzeugung von ihren Anfangen bis auf ihren gegenwartigen Stand, nebst einem Anhange iiber Seesalinen', Zeitschrift fur das Berg-, Hiittenund Salinenwesen im Preufiischen Staate, 1896, 44: 314 and 320. 51. Schrocker, 'Das Piccard'sche Verfahren zum Abdampfen der Soole', Zeitschrift fiir das Berg-, Hiitten- und Salinenwesen im Preufiischen Staate, 1879. 52. For differing views see: M von Arbesser, 'Polemik iiber den Rittinger-Piccard'schen Abdampf-Apparat', Berg- und Hiittenmannisches Jahrbuch der Bergakademien von Loeben u Pribram, 1881, 1; C. von Baltzberg, 'Practische Erfahrungen iiber den Piccard'schen Apparat', Oesterreichische Zeitschrift fiir Berg und Hiittenwesen, 1878, 51-2; C. von Baltzberg, 'Neuer Apparat zur Abdampfung von Salzsoole durch Reproduction der im Wasserdampf gebundenen Warme von Weibel, Briquett & Comp. in Genf, Oesterreichische Zeitschrift fiir Berg- und Hiittenwesen, 1878a, 45-7; C. von Baltzberg, 'Graphische Darstellung der nothigen Betriebskraft und Heizflache, wie auch der zu erzielenden Brennstoff-Einsparung bei dem Piccard'schen Abdampf-Verfahren', Oesterreichische Zeitschrift fiir Berg- und Hiittenwesen, 1879, 12-13; C. von Baltzberg 'Verbesserungen am Piccard'schen Abdampfapparat', Oesterreichische Zeitschrift fiir Berg und Hiittenwesen, 1880, 51-2; E. Kobald, 'Theorie des Ritinger-Piccard'schen Apparates', Oesterreichische Zeitschrift fiir Berg- und Hiittenwesen, 1879, 37 and 38; E. Kobald,'Ueber den idealen und wirklich ausgefuhrten Kreisprocefi beim RittingerPiccard'schen Abdampfverfahren', Oesterreichische Zeitschrift fiir Berg-und Hiittenwesen, 1881, 24 and 25; Simmersbach, 'Neues iiber Sieden und Trocknen von Salz. Piccard's AbdampfVerfahren', Berg- und Hiittenmannische Zeitschrift von Bruno Kerl, 1880, 20. 53. W. Weber, 'Verkiirzung von Zeit und Raum. Techniken ohne Balance zwischen 1840 und 1880', Netzwerke Stahl und Strom, 1840 bis 1914, Propylaen Technikgeschichte, vol. 4, W. Konig and W. Weber (eds) (Berlin, 1990), 123. 54. See A. Fleischer, Patentgesetzgebung und chemische-pharmazeutische Industrie im Deuts Kaiserreich (1871-1918), (Stuttgart, 1984), and P.A. Zimmermann, Patentwesen in der Chemie: Urspriinge, Anfdnge, Entwicklung (Ludwigshafen, 1965).

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1

BEATTY

INTRODUCTION Technological change played a central role in shaping the potential for economic growth in the nineteenth century, yet the experience of early and late industrializing countries varied widely. In the UK and the USA technological change derived largely from domestic invention and innovation, albeit built partly on the imitation and adoption of foreign practice. In contrast, domestic invention played a lesser role in the experience of most late developing countries, in some accounts almost entirely absent. Instead, most innovation derived from the importation of foreign know-how and machinery. The comparative nineteenth-century experiences were of course not polarized between domestic invention and imported techniques, but consisted of differences in degree over a broad spectrum. Nevertheless, there remained a qualitative difference between levels of inventive activity in the early industrializers - who subsequently became technology exporters through the long nineteenth century - and in the late industrializers - primarily technology importers. Historians interested in the differential patterns of economic growth in the nineteenth century have recently turned their attention to the implications of varying institutional specifications. Institutions, in this view, alter incentives to invest in economic activity in ways that might promote or constrain economic growth. Recent work has argued that intellectual property institutions shaped the rate and direction of investment in the component parts of technological change: invention, innovation and diffusion.2 In other words, differing patent systems should yield different History of Technology, Volume Twenty-four, 2002

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patterns of investment in technological change. This argument, however, has not been carried much beyond comparisons among the early industrializers: the UK and the USA.3 This paper offers one look at the differential experiences of early and late industrializers. We can observe a fundamental distinction in how the early industrializers and the later industrializers experienced technological change. For the former group, technological change came primarily (though not exclusively) from domestic inventive activity. For the latter, it came overwhelmingly from foreign imports.4 Thus the first question of this paper: did technology policies reflect this divergent experience? That is, were patent laws in the former structured to induce domestic invention while the laws of the latter aimed to encourage technology imports? The first part of this paper delineates the relevant characteristics of nineteenth-century patent law and examines the range of legal experiences through the nineteenth century, focusing especially on the Mexican case. It argues that while early versions of national patent laws ranged widely, between the 1870s and 1914 patent systems in late industrializers had largely converged around a single norm. The second part of the paper turns from patent law to the patenting experience and examines the presumption that patenting will also reflect the fundamental difference between early and late industrializers. This paper examines patent law and patenting in late industrialization through the lens of the Mexican experience. Mexico provides a useful case as a late industrializer that undertook substantial patent law reform at key moments in the nineteenth century and sought to use reformed law to promote investment in the innovation of foreign technologies. Beginning in the 1870s, Mexico experienced substantial economic growth and early industrialization, an experience based heavily on imported machines and processes.5 This does not mean, however, that the Mexican case mirrors the experience of other late industrializing countries. In fact, we will see that both law and patenting in Mexico differed from the late industrializing norm, most likely due to the spillover effects of its proximity to the US market. Finally, this paper addresses three broader issues in the literature on intellectual property institutions and technological change. First, by tracing the broad outlines of the nineteenth-century experience of patent law and patenting it moves us one step closer to understanding the relationships between institutions, technological change and economic growth in divergent national settings. Second, it delineates the common institutional response of relatively late industrializing countries to the challenges of promoting technology transfer. Third, while patent records have provided a fruitful source for historians working on the UK and the USA, they remain relatively unexplored among the latecomers.6 This paper delineates some of the possibilities and limits presented by patent records in one late industrializer.

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COMPARATIVE PATENT LAW AND THE CASE OF MEXICO Technological change has long been an object of government policy for both early and relatively late industrializers as governments adopted policies to promote investment in technological change. Nearly all nations with aspirations of economic progress adopted some form of modern patent systems between the late eighteenth and late nineteenth centuries. Their goal was to stimulate investment in technological progress.7 These new laws drew partly on a European ancien regime tradition of awarding monopolies to those who introduced new techniques and novel activities. Yet they also responded to the increasing prevalence of invention and tended toward a regularized protection of inventors' rights. The UK's patent system evolved over several centuries following the 1623 Statute of Monopolies, while the USA and France legislated their first patent laws in 1790 and 1791 respectively. Following their lead, dozens of nations around the world adopted national patent laws through the nineteenth century. For the relative latecomers, this new form of technology policy sought not to induce investment in inventive activity but rather to promote investment in the importation of foreign techniques. This was certainly the case in Mexico: 'Recognition of this type of property', wrote Development Minister Fernandez Leal in 1892, 'is without any doubt the most powerful factor of modern industrial development.' 8 Given the ways in which the experience of technological change differed between early and late industrializers, we might expect a corresponding contrast in their technology policies as well as in their patenting experiences. In the legal arena, we might expect that patent law in the early industrializers would tend to favour strong rights for domestic inventors while in late industrializers patent law would favour the importation of foreign technique. For the former, this might mean limiting patenting to original inventors within the country, rigorous examinations to yield patents with stronger claims, relatively cheap rights of long duration, and few restrictions on patentees' use of their rights. This pattern roughly maps the US model in the nineteenth century. The implications for patent law in the late industrializers, however, are not as readily apparent. To simplify, we can construct an artificially polarized debate regarding the interests of late industrializers.9 Both views assume that late industrializers are primarily interested in maximizing investment in the innovation and diffusion of foreign techniques as opposed to investment in inventive activity. One view argues that late industrializers will tend to adopt relatively 'weak' patent laws - laws that weaken the rights of original inventors (especially foreign), which allow relatively unrestricted innovation of foreign techniques, and which contain provisions favouring domestic innovation and diffusion. Such laws might include provisions that allow anyone to patent novel techniques (e.g. 'patents of introduction'), which simply register instead of examine patent applications, which confer patents of short duration, and which restrict patentees' rights in ways that promote innovation and diffusion, especially through compulsory working or licensing clauses.10 History of Technology, Volume Twenty-four, 2002

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The contrasting view holds that investment in importing foreign technologies is, like inventive activity, a risky and uncertain enterprise, and that offering strong protection to foreign patentees is necessary to secure those rights, to increase the likelihood that early investors in foreign technologies can recoup initial costs, and hence to maximize investment in imported machines and processes. Thus late industrializers would tend to adopt relatively 'strong' patent laws, like those of the USA - laws that strengthen the property rights of the original foreign inventor or patentee and that place few or no restrictions on their rights. A third option exists for late industrializers as well: offering no patent protection to induce invention, importation and innovation of new technologies, whatever their origin. The logic here is that domestic technicians and entrepreneurs would be entirely free to imitate, copy or modify the full range of foreign advances.11 These views provide divergent but plausible scenarios for the specification of patent law in late industrializers. But they also threaten to impose an artificial coherence on the policy regimes of nineteenth-century late industrializers. As this paper argues, because most latecomers were engaged in concurrent projects of institutional state-building and economic catch-up, initial policy efforts ranged widely, and convergence came only towards the end of the century.12 Which scenario would ultimately predominate is not evident a priori, but - before we compare nineteenth-century patent laws with these scenarios - four key aspects of patent law provide important guideposts: who can patent, what can be patented, what is the cost and duration of a patent, and what restrictions are placed on patent rights.13 On each point, we might reasonably expect to observe significant differences between the early and late industrializers. The essential contrast is between provisions that yield relatively stronger or relatively weaker patent rights. The logic for each point runs as follows. Who can patent ? Was patenting (at one extreme) limited solely to the originator of the new technique, the 'first and true inventor', or could anyone who introduced a novel technique to the nation claim protection? The latter case represents a continuation of the ancien regime tradition of exclusive privileges conferred by the crown, conferred to those who introduced new activities from abroad, and several nations continued this practice in the nineteenth century as 'patents of introduction'. 14 Relatedly, how did patent law treat foreign inventors? Were they allowed to patent at all, did the law require that they patent through a resident agent, could they confer their right to patent to third parties, and did law and procedure favour or prejudice their interests relative to domestic inventors? We would expect that those countries most interested in using patent law to stimulate domestic inventive activity would tend toward narrowing the pool to original and domestic inventors, while those more interested in technology transfer might adopt one of two alternative scenarios. Late industrializers History of Technology, Volume Twenty-four, 2002

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might argue that technology imports would be maximized by strengthening the rights of foreign inventors or, conversely, by weakening their rights and allowing third-party nationals to patent foreign advances (or at the extreme by not allowing any patent protection to foreign advances). What can be patented ? Most laws agreed generally that the object of patenting had to be (in the words of the 1844 French law) 'the invention of new manufactures; the invention of new means, or the novel application of known means'. 15 That is, patents in most nineteenth-century systems sought to protect a discrete technological advance. Most relevant here is whether patents were conferred after a careful examination for novelty or whether they were simply registered and conferred as long as the application met procedural criteria. Careful examinations would tend to create stronger and more valuable patent rights, more easily traded and less susceptible to challenge, while registration would open patenting to a broader range of patentees, not all with strong claims as truly novel inventions, and thus would confer relatively weaker patent rights.16 Here we would expect that by the nineteenth century the early industrializers might favour examination systems while late industrializers might favour registration systems. The latter would allow greater participation by nationals intent on patenting around foreign advances or patenting improvements of foreign inventions; it would also lower the potential legal barriers to domestic infringers of foreign patents and might encourage widespread licensing of foreign technologies rather than monopoly use.17 Finally, registration systems are also cheaper to administer and thus the most affordable institutional structure in many developing nations. What is the cost and duration of a patent? The issues here are relatively straightforward: we would expect those nations interested in stimulating domestic invention to offer low-cost, easily accessible and long-term patent rights. Those interested in encouraging the innovation and diffusion of foreign advances might plausibly tend towards one of two alternative specifications. If they argue that more valuable rights are necessary to induce investment in the import of foreign technologies, then they too would tend towards low-cost long-term rights. Alternatively, however, they might tend towards higher costs and shorter terms, thereby reducing the pool of potential patentees and pushing those that do patent into the public arena as quickly as possible. Progressive taxation provides one way of doing just this. What restrictions are placed on patent rights ? Unrestricted patent rights leave patentees free to exploit (use, sell, assign, or simply sit on) their invention as they wish. Such patents constitute stronger and more valuable rights and would presumably maximize incentives to invest in inventive activity. At the same time, however, such rights would do little to promote the commercial innovation or diffusion History of Technology, Volume Twenty-four, 2002

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of imported technology during the life of the patent and would allow, for instance, foreign patentees to establish import monopolies or to prevent competition even if they did nothing to innovate in the domestic market. In contrast, several kinds of restrictions could promote the commercial innovation and diffusion of foreign technologies. These include the prohibition of using foreign patents to protect import monopolies, the requirement that foreign patents be taken in the name of a resident agent or representative, and, most importantly, the compulsory working or licensing of patented technologies.18 We might expect late industrializers to exhibit such restrictions. In sum, the interests of domestic inventors - and presumably of early industrializers and technology exporters - would favour a restriction of patenting to the first and true domestic inventor, a relatively rigorous examination for novelty, low-cost and long-term patents, and few if any restrictions on the use of the patent. Such a regime would maximize protection while minimizing direct pressure to innovate or diffuse.19 In contrast, late industrializers in the nineteenth century faced a choice between several models ranging from strong to weak (or nonexistent) protection along the lines outlined above. It is not clear a priori which side of the spectrum these countries would tend towards as they adopted, adapted and reformed national patent regimes through the nineteenth century. Let us examine that experience. Two distinct trends characterize those patent laws adopted between the 1790s and the end of the long nineteenth century in 1914. First, nearly all nations with aspirations to material progress and to industrialization adopted some form of a national patent law.20 Until the 1880s, however, national patent laws presented a fairly heterogeneous landscape.21 While most new laws around the world drew in some fashion from the precedents of the UK, the USA and France, they nevertheless ranged widely in their specification of patent rights. National laws conferred patents only to true inventors or to any who could introduce any new technique or a novel economic activity, broadly defined; conferral occurred via simple registration or after rigorous examination or by the judgement of the congress; terms ranged from one to twenty years and costs varied widely, even within countries; finally, patent rights were wholly unrestricted and absolute or were conferred with a diverse array of limiting regulations. To a great degree, this heterogeneity represented the legacy of previous regimes (ancien or colonial) and of early, tentative bureaucratic efforts to adopt and administer national technology policies. Of course the patent systems of the earliest adopters - the UK, France and the USA - differed in significant ways over the four issues outlined above.22 On one extreme, the US patent system (based on the 1790 and 1793 laws) conferred strong rights with few restrictions. Only the original inventor could patent, patent costs were low and terms long, and there were no substantial restrictions on the use or non-use of patent rights. A rigorous examination for novelty replaced the original system of simple registration in 1836. Foreigners and foreign inventions were ineligible for History of Technology, Volume Twenty-four, 2002

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US patents until 1836 and were burdened thereafter by higher patenting fees. The system sought explicitly to induce domestic invention, 'to promote the progress of science and useful arts,' and, as Khan and Sokoloff have argued, it marked a sharp divergence from European ancien regime practice as well as the contemporary British system in that it was designed to support broad social participation in domestic inventive activity. In contrast, in the French system (adopted in 1791) patentees could be French or foreign, included the original inventor or their assignee, and also included anyone who introduced a novel technique to the country, whether or not they were its actual inventor - the so-called 'patents of introduction'. Patent applications were conferred through a simple registration system, the patent term was moderate (5-15 years depending on the payment), and costs were moderately high. Patentees faced several restrictions to their rights: they or their assignee had to be resident in France, French patentees could not patent abroad, and all patents had to be worked domestically within two years. The new law of 1844 eliminated patents of introduction and voided rights if the patentee imported the patented product from abroad. The French system, in sum, defined patentability more broadly than did the US system and imposed substantial restrictions on those rights, all of which sought to promote innovation and diffusion earlier than did the US system.23 The UK system of the late eighteenth century - the result of almost two centuries of common law since the 1624 Statute of Monopolies - fell between these two. In the UK system, only the 'true and first inventor' could patent, but - reflecting traditional practice - this phrase was understood to include those non-inventors who introduced new techniques from abroad.24 The UK maintained a registration system through the nineteenth century, offered patents of medium term at relatively high cost (with typically high bureaucratic hurdles) and, like the USA, placed few restrictions on the rights once they were awarded. The Reform Act of 1852 made patenting somewhat more accessible and lowered patenting fees. Until at least 1852, the UK system limited accessibility to patenting through its administrative procedures and high costs, and it did little to promote commercial innovation or diffusion once the patent was granted.25 A compulsory licensing clause was added in 1883 and compulsory working in 1907. Heterogeneity in world patent laws disappeared between 1880 and 1914 as a series of reforms in nearly every nation brought the vast majority of national laws together around a single norm. This convergence of national patent laws constitutes the second distinct trend of the century and is summarized in Table 1, which is based on an examination of 19 patent laws among the relatively late industrializers. Most late industrializing nations converged around a single norm that fell between our archetypes of 'strong' and 'weak' patent systems. This norm can be summarized on each of the four issues we noted above: first, it limited patentees to the original inventor or their legal agent. Third parties could not receive 'patents of History of Technology, Volume Twenty-four, 2002

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introduction' and foreign inventors (or their agents) had equal rights to domestic inventors. 26 Allowing legalized representatives or original inventors to patent constituted a recognition of patent assignments prior to the patent application, a recognition especially favourable to foreign patentees. Second, it registered all applications which met minimum criteria, in some countries accompanied by examinations for novelty.27 Third, patent terms fell between ten and 15 years while costs were typically levied on a periodic and escalating basis, yielding relatively high fees for full-term protection. Finally, the norm imposed significant restrictions on the patent right, most importantly and commonly with compulsory working requirements in some form. Many also stipulated that foreign patents would expire with the termination of the original patent abroad. On each count this norm differed from the US model, which offered patents only to the original inventor, discriminated against foreign patentees, conducted rigorous examinations for novelty and non-obviousness, conferred longer terms for lower costs, and placed few restrictions on patentees. The pattern conforms most closely to the model first established by the French system.28 Table 1 Convergence of national patent laws after 1880 Shared Characteristics patent protection for inventions;3 registration or limited examination;13 original inventor or legal agent; 10-15-year terms w/ periodic taxation, yielding high cost for full protection;6 original inventor has priority over improvements^ compulsory working in some form;S full protection for foreign patentees.1

Exceptions no patent law (Netherlands 18691912; Switzerland 1850-1907); strong examination (US, Germany) ;c only the 'first and true inventor' (US) or 'patents of introduction' by any third party (Spain) ;d longer terms and very low total fees (US, Mexico); no priority (US, Britain); no compulsory working (US, Mexico)h; some bias against foreign patentees (US).

Notes: a Most commonly defined as the invention of new manufactures, the invention of new means, or the novel application of known means for the purpose of obtaining a new result (See, for instance, Greeley, ch. 1). b Limited examinations were typically conducted by patent office administrators who checked previously issued patents for similar techniques, but not for utility, c The USA, and to some extent Germany, conducted careful examinations by technical experts. d Bolivia and Ecuador also offered patents of introduction. cont. History of Technology, Volume Twenty-four, 2002

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Table 1 Convergence of National Patent Laws after 1880 Notes cont. e Most charged escalating 'renewal' fees on an annual or every several year basis. f Inventors typically had priority on improvement patents for a specified period such as one year. g Usually within 1-3 years of issue. If not worked, some laws declared that the patent 'ceases to be valid' while others allowed that the patent 'may be revoked' upon petition. Some countries made exceptions to compulsory working through bilateral national treaties. h Although in the USA after 1886 and in Mexico after 1903 patent law contained a provision for compulsory working, both were weak provisions, and were not applied in Mexico and in the USA only in conjunction with the Sherman antitrust act. See Machlup, 1958, and Penrose, 1951, 193. i Several countries specified 'patents of importation' as a separate class for original foreign inventors. Most countries limited the term of foreign patents to the term of the original patent taken abroad. Countries surveyed (with year of recent patent law reform (s) before 1914; * denotes member of the International Paris Convention by 1914): USA (1836)*, UK (1888/1907)*, France (1902/1908)*, Germany (1891/1904)*, Spain (1902)*, Italy (1894)*, Russia (1896), Sweden (1887)*, Switzerland (1907)*, Netherlands (1912)*, Austria (1897/1908)*, Canada (1893/1904), Japan (1909)*, India (1888), Argentina (1903), Mexico (1890/1903)*, Brazil (1882)*, Colombia (1902), Uruguay (1885). Sources: Greeley, 1899; Fairweather, 1910; Penrose, 1951; United Nations, 1975; Lerner, 2000a and 2000b. For comparison with earlier legal regimes, see Godson, 1840; Urling, 1845; Coryton, 1855; and Kingsley, 1848. Mexico's nineteenth-century patent history - dating originally from the Spanish law of 1820 and undergoing substantial late-century reform between 1890 and 1903 - falls within the international trends but presents a moderately exceptional case from the majority of late industrializers. The story runs along the following lines.29 Mexico inherited its first patent law from Spain upon independence in the early 1820s and adopted its first national law in 1832. For the next half century Mexican law yielded few patents and many complaints: its provisions were sparse and vague, fees were high and discretionary, it specified no procedures for the administration of patent conferral or the adjudication of disputes, it included only the vaguest requirement for disclosure, and conferral itself could be discretionary, ad hoc, and according to 'the judgement of the general congress'.30 The law offered patents of introduction and required the commercial working of all patented technologies and activities, although there is little evidence that this clause was enforced. Table 2 lays out the essential characteristics of Mexico's nineteenth-century patent law regimes. Mexico's patent law from independence into at least the 1870s had much in common with ancien regime systems which conferred broad privileges in order to attract new activities from abroad, at the will of the sovereign.31 It also reflected the general heterogeneity of many early nineteenth-century systems around the world. History of Technology, Volume Twenty-four, 2002

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Table 2 Specification of Mexican patent laws, 1832—1927 Post-1890

Pre-18 90 Conferral

Registration

Registration

Inventions

'He who invents or improves any industry in the Mexican Republic.'

'Every discovery, invention or improvement of a new industrial product, a new method of production or the new application of known methods to obtain an industrial result or product.'

Introductions

'The introducer of any branch No. of industry that is of great importance in the judgment of congress.'

Compulsory working

Added in 1843 (term indeterminate).

Yes, w/in 5 years. Abolished in 1896.

Term

Inventions - 10 years; Improvements - 6 years; Introductions indeterminate.

20 years; extendable for 5 more.

Cost

From $10 to $300 pesos; criteria unspecified, with differential fees charged to nationals and foreigners; see text.

1890: $50-150 pesos; 1896: 5-year instalments of $50, $50, $75 and $100; 1903: $5 pesos for first year; $35 for remainder.

Foreign patentees

No mention.

1890: Explicit inclusion w/ priority right; 1903: Terms of the Paris Convention.

Adm. & Adj. procedures

Scant and vague.

1890: Some additional specification; 1903: Extensively detailed.

Source: Dublan and Lozano, Legislation Mexicana, vol. 2, 427-8; vol. 4, 706; vol. 6, 219-20; vol. 20, 179-83; vol. 26, 213; vol. 35, 864-79. Following the Liberal victory over the French-backed government of Maximilian in 1867, the daily administration of patent conferrals by the Mexican Development Ministry (Fomento) began to move away from the broad and discretionary nature of previous practice, and the Ministry concurrently undertook a far-reaching project to rewrite patent law. Patents of introduction fell to a small fraction of their already low level, History of Technology, Volume Twenty-four, 2002

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and the range of patenting fees was narrowed to between $100 and $150 pesos rather than the previous $10-300 pesos (with an exchange of just over 1 peso per dollar in 1880), although the average fee charged to Mexican patentees rose from $25 to $100 pesos in 1886. Formal legal reform, however, was not accomplished until 1890. The comprehensive new law of that year formally narrowed patentability to discrete technological inventions and restricted the patentee to the original inventor or their legal representative. It also doubled the patent term to 20 years, further stabilized patenting fees (albeit at a higher average level), and specified administrative procedures for conferral and opposition suits. In 1896 Mexican law dropped the compulsory working clause of previous law in favour of a progressive taxation system, implying a sharp decrease in initial patent fees. In 1903 a new law further reduced fees to $5 pesos for the first year and $35 for the remaining 19 years ($2.50 and $17.50 in USD at the current exchange). Foreign patentees no longer had to worry about renewal payments. It also more carefully specified administrative and adjudicatory procedures, established a central Patent Office, and brought Mexico into the International Paris Convention for the Protection of Industrial Property.32 Together, these reforms established the basis for a patent system that was more transparent and for patent rights that were stronger and less costly. Patentees could expect to define and defend their rights with a greater degree of confidence than had previously been possible. Foreign patentees had particular reason to be pleased with strong, cheap and relatively unregulated rights.33 Mexican patent rights, moreover, were backed by the Federal courts, whose decisions tended to support patentees over rival entrepreneurs. 34 That Mexican patents were widely recognized as value-enhancing rights is supported by the hundreds of thousands of pesos and dollars invested by over 3,000 Mexicans and over 7,000 foreigners in acquiring, advertising, trading and defending them between 1890 and the onset of revolution in Mexico in 1911. While the broad outlines of the Mexican experience follow the general trends of world patent laws, Mexico presents something of an outlier in relation to the emerging norm of late nineteenth-century patent regimes. Beginning de facto in the 1870s and de jure in 1890 and 1903, Mexico adopted a patent system that sought to maximize protection to original inventors while abandoning provisions that might promote the introduction and innovation of technologies by any entrepreneur. The intention of policy-makers, however, was not to promote investment in domestic inventive activity but rather to increase incentives to invest in technology transfer. They assumed, in other words, that the widely accepted relationship between secure property rights and investment in inventive activity applied also to investment in the introduction of novel techniques from abroad. Like most other patent-conferring nations, Mexico's late-century reforms were very much based on the perceived benefits of integration with the global economy. Yet Mexican reforms diverged in significant ways from the common trend. Most importantly, Mexico offered cheaper, History of Technology, Volume Twenty-four, 2002

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longer and less-regulated patents than any other nation except the USA. In contrast, patent systems in most late industrializers had largely converged around a single norm by the end of the long nineteenth century.35 This emergent model more closely resembled the French system of the early nineteenth century than it did the US or the UK system. It offered temporary protection to inventors and their assignees in return for public disclosure, but it also exhibited provisions that tended to weaken the value of patent rights and that sought to promote the domestic exploitation of patented technologies. On the one hand, most nations that found themselves increasingly part of the globalizing economy of the late nineteenth century could not avoid international pressures to offer patent protection to foreign inventors. Moreover, domestic elites around the world - like those in Mexico - had also largely adopted the liberal arguments that linked property rights with incentives to invest. On the other hand, policy-makers in most late industrializing nations recognized that their primary interest lay in encouraging technology imports and their domestic innovation, and believed that limiting and regulating patent rights in the ways discussed above would help attain this end. The exceptions to this emerging norm are also notable. Germany, clearly the industrial leader among the latecomers, adopted a patent system that offered significantly stronger rights to inventors, primarily through a more stringent examination system. In contrast, and virtually alone among the late industrializers, Spain continued to offer 'patents of introduction' well into the twentieth century. Mexico, however, presented perhaps the greatest divergence from the late industrializing norm by radically reforming her patent laws to conform closely to the US model. The explanations for this divergence are various and difficult to pinpoint, although I have discussed them elsewhere (and growing cross-border trade following completion of the rail grid likely played a major role). Likewise, whether this institutional path yielded net gains or costs to economic growth and social welfare is far from straightforward, although I have elsewhere argued the negative case.36 As we have compared the institutional structures of early and late industrializers, let us now turn to the central trends in the patenting record itself, again using Mexico as our case. MEXICAN PATENTING IN COMPARATIVE PERSPECTIVE How did the patenting experience of late industrializers compare with what we know about the early industrializers? What, in other words, can the patenting evidence of the latecomers tell us about their experience of technological change? Three general points stand out. First, the rate and direction of patenting during the early stages of industrialization look remarkably similar in early and late industrializing nations and suggests that late industrializers were little handicapped in their access to new ideas. Second, the dramatic difference between the two groups comes in the dominant presence of foreign patentees in the experience of late industrializers, indicating an unsurprising degree of technological History of Technology, Volume Twenty-four, 2002

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dependence on foreign know-how. Third, domestic patenting remained significant and exhibited strong reactions to emerging market opportunities as well as to the stimulus of foreign technological advances. In other words, within a broader context of technological dependence there is evidence of some growing level of domestic technological capacity. Patent records constitute a rich source of historical evidence, but do they provide an effective source of information for the study of technological change? Patents are of course not synonymous with inventive or innovative activity, and patent statistics only directly measure investment in patent rights themselves.37 Yet as long as investment in patent rights is roughly proportional to investment in new technologies - the 'propensity to patent' - then patent statistics roughly reflect the rate and direction (though not the level) of investment in inventive activity and hence of interest in technological change. As several economic historians have argued, the rise and fall of aggregate patenting as well as its distribution across economic sectors generally tracks tendencies of inventive activity.38 But if patenting data provide one rough indicator of the rate and direction of investment in inventive activity in the early industrializers, the issues are more complex - and as yet relatively unexplored - for late industrializers like Mexico.39 In late industrialization domestic inventors typically comprised only a minority of the total patent pool, and patent evidence thus can not simply provide an indication of inventive activity. The following paragraphs offer an overview of the Mexican patenting experience in order to establish the baseline characteristics of the late industrializing patenting experience.40 Figure 1 Total patents conceded and foreign commerce, 1850-1910

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Sources: see text. There is little in Mexico's aggregate nineteenth-century patenting experience to distinguish it from other countries making the transition to early History of Technology, Volume Twenty-four, 2002

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Patents and Technological Change in Late Industrialization

industrialization and economic growth. After experiencing low and erratic levels of patenting (conferring less than 20 patents per year on average) through most of the century, patenting began to accelerate sharply in the late 1870s and maintained a more or less steady average increase of 13 per cent per year until the onset of revolution in 1911.41 Annual levels had reached 100 patents by 1888, 500 patents by 1902, and 1,500 patents by 1910. This period of rapid growth coincides closely with Mexico's late century economic expansion (see the Mexican experience in Figure 1). After nearly half a century of stagnation from independence to the mid18608, the Mexican economy began a secular growth trend that continued until the onset of revolution in 1910. Although foreign investment, first in infrastructure and export-oriented production, dominated and led this broad expansion beginning in the early 1870s, growth was also felt more broadly through the economy. Urban populations and markets grew rapidly, the demand for manufactured goods expanded apace, and, protected by federal policy, large-scale domestic manufacturing appeared across several dozen industries after 1890. Not only does the timing of patenting growth conform to national economic trends, but notably the only substantial pauses in late-century patenting coincide closely with Mexico's two short-lived depressions of 1893-4 and 1907-8. This pattern of procyclical and accelerating patenting during a country's early transition to industrialization is reflected in the experience of most other nations. The two graphs in Figure 2 illustrate the experience of eight nations, ranging from the early to relatively later industrializers.42 Although gross comparisons of annual patenting levels between countries can be misleading due to institutional and contextual differences, the logarithmic trends of patenting indices indicate that early phases of industrialization are in all cases associated with a distinct and sustained acceleration in patenting. Despite the concurrence of patenting and economic growth in Mexico and other nations, and although patenting was generally motivated by prospects for economic gain, the Mexican patenting experience does not necessarily capture a real increase in investment in technological innovation.43 Beyond the familiar caveats concerning patents and inventive activity, several additional factors further weaken the relationship in late industrializers. First, poor organization and irregular functioning of patent administration may have discouraged patenting or yielded low and irregular conferrals. At least the latter issue presented recurring problems for Mexico until the early 1870s.44 Until then, weak and inconsistent administrative capacity must be considered along with the effects of a stagnant economy in explaining low and irregular patenting rates. Second, patenting growth may well represent an expanding public awareness of the patent system as much as it does expanding investment in technology.45 In Mexico, the dramatic expansion of local and regional markets into national ones from the 1870s to the 1890s, and the implications for greater information flows and the extension of governing capacity through the country, likely accounts for some portion of rapid patenting growth. History of Technology, Volume Twenty-four, 2002

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Edward Beatty Figure 2 Comparative patenting experiences during early industrialization Log of index (yr. 25 = 100) of annual patents; 50-year period beginning as indicated.

USA 1790 UK 1770

«c c

2

< 10

15

20

25 30 Years (1-50)

20

25 30 Years (1-50)

35

40

45

50

Sources:. Saiz Gonzalez, 1999, appendix; Mexican patent Database (see text); Historic Statistics of the United States, 1960; Boehm, 1967, p.22. Unfortunately, the absence of consistent information on the residence of domestic patentees prevents us from examining this assertion (although a relatively constant two-thirds of all domestic patents who did note their residence listed Mexico City). Third, a declining percentage of patents conferred in Mexico were taken by Mexicans. From mid-century through History of Technology, Volume Twenty-four, 2002

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the early 1880s Mexicans took just over half of all patents. Thereafter, their presence declined as patenting by foreigners rose rapidly and comprised roughly 80 per cent of all conferred patents after 1900. This experience differs little from that of other late industrializers (Table 3), but it implies that the relationship between patenting and technological change in late industrialization must be approached rather differently than it has been by economic historians studying the early industrializers. Table 3 Weight of foreign patenting in national contexts (percentages) Country United States United Kingdom Germany France Japan Spain Mexico Switzerland Italy Denmark Norway Czechoslovakia Holland Canada Brazil Argentina Chile Venezuela Turkey Egypt

1850s

c. 1900

1930s

1960s

2 22 29

11 44 36 50 27 60 80

13 52 26 50 24

20 75 62 68 33 71 83 75 74

32 50

83

56 64 66 72 71 81 90

89 87 72 73 93 94 94 96

Sources: Penrose, 1951, 111, note 3 (1930s), 140 (Britain, 1906); Historical Statistics of the United States, 1960, series W 66-76; Saiz Gonzalez, 1999; Kaufer, 1989, 17; MorrisSusuki, 1994, 96; Machlup, 1958, 4, note 12; Pakes and Simpson, 1989, table 3; Inkster, 1990, 60-1; Inkster, 2002, 3; Ranis, 1990, 168, table 7.2; Evenson, 1990, 340, table 14.3. Exact dates of cited percentages vary somewhat among countries. Foreigners took a growing and eventually dominant portion of Mexican patents, separating the experience of a late industrializer like Mexico from the early industrializers of the early nineteenth century. Figure 3 disaggregates Mexican patenting by foreigners and Mexican nationals. But just what this means for Mexico's experience of technological change as a late industrializer is not clear a priori. On one hand, patent applications in both early and late industrializers represent one pool of new knowledge available for commercial innovation regardless of whether the inventions emanated at home or abroad. Some portion of all patents represent new History of Technology, Volume Twenty-four, 2002

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technologies that will subsequently be innovated and diffused in the economy. Patent papers themselves embody new knowledge that disseminates through publication within the patent system.46 This is the case even though the artefact may remain monopolized in few hands for the duration of the patent or even if the artefact is never commercialized. From this perspective, late industrializers should have faced little disadvantage in terms of their access to new knowledge. Latecomers had the Gerschenkronian advantage of acquiring foreign advanced know-how, jumping the technological gap that separated them from the early industrializers, and thus achieving more rapid initial growth. Figure 2 nicely illustrates the positive relationship between the lateness of industrialization and more rapidly accelerating patenting levels. The UK and the USA averaged 5.1 per cent growth per year; France and Germany averaged 6.7 per cent, while Italy, Spain, Russia and Mexico averaged 8.7 per cent per year. Mexico's patenting boom is particularly spectacular and far exceeded the expansion of the national economy: while patenting grew 13 per cent annually, Mexican foreign trade grew just over 8 per cent per year and nominal GDP expanded at about 5 per cent annually through the decades before 1911.47 Figure 3 Patenting by Mexicans and foreigners in Mexico, 1850-1911 '

10000 1

;

_ _

!

|

I

] I

y™ A g

i

\

100

10

2L

A

/

•

1 1850

1855

xJ

1860

W/f

1865

1670

1675

,1

1860

1685

1800

'

'

'

1

1865

1900

1005

1010

Arrows indicate years of legal reform. Sources: see text. Even per capita aggregate patenting rates differ surprisingly little between Mexico, the USA and the UK during each country's early industrialization, as Table 4 indicates.48 The UK numbers range from 5 patents per million residents to 17 over the era of early industrialization; the US numbers range from 8 to 38, while total patenting in Mexico begins low, at 3 per History of Technology, Volume Twenty-four, 2002

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million, but ends high, at 86. International comparisons of patenting levels are of course highly problematic, and the most relevant issues stem from institutional differences. Among these three countries, for instance, UK patents were costly but conferred through a simple registration system before 1852; US patents were cheap but had to navigate a careful examination process after 1836; while Mexican patents cost dearly and were registered early in the period but were relatively cheap late in the period. Thus the only unambiguous bias stemming from institutional differences lies in the Mexican numbers for 1910, when we would expect to see higher per capita numbers, other considerations aside. Despite these and other comparative problems, the evidence suggests that late industrializers did not necessarily suffer from a lack of access to new technological knowledge. Table 4 Comparative per-capita patenting Population total (mllns) patents

Domestic patents

total patents per mlln

Domestic Domestic patents patents per mlln per mlln literate

UK 1770 1850

6.4 17.8

29 494

na 386

4.5 27.7

na 21.7

na 37.4

USA 1800 1850

5.3 23.3

43 873

na 853

7.7 37.9

na 36.7

na 44.7

Mexico 1880 1910

9.0 15.2

24 1,308

16 320

2.7 86.0

1.8 21.0

11.8 75.2

Notes: Total and domestic annual patents are centred three-year averages. Sources: Populationfiguresfor the UK are from Mitchell, 1998, 78; for the US from Historical Statistics of the United States, 1960, table A-2; and for Mexico from INEGI, 1995, table 1.1. UK patents from Dutton, 1984; and US patents from Historical Statistics of the United States, 1960, series W-69. Estimated literacy rates used here are, for the UK, 45% in 1790 and 58% in 1850 (from Flora, 1973, table B); for the US, 78% in 1800 and 82% in 1850 (from Gilmore, 1989, 121; and for Mexico, 15% in 1880 and 28% in 1910 (from INEGI, 1994, 117 and Vaughan, 1982, table 2.2; 1880 estimated). On the other hand, however, aggregating foreign and domestic patents conceals too much. Patents taken by foreigners and patents taken by domestic nationals often represented different motives, strategies and patterns of inventive and innovative activity. If most Mexican patents represent domestic inventions, most foreign patents represent foreign inventions for which their inventors have applied for a Mexican patent, presumably subsequent to an original patent in the inventor's home

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country.49 This may not have been the case, however, for many of those foreign patentees who were resident in Mexico. This group constituted between 15 per cent and 23 per cent of all foreign patentees after 1890, and the vast majority were American in origin (roughly 80 per cent). Because technology transfer has historically depended heavily on imported human capital, the activities of this group of immigrant technicians and their impact on the diffusion of technology and know-how in Mexico deserves further study. As a group, foreign patentees (regardless of residence) tended to behave in ways which differed significantly from Mexican patentees, with three issues dominant. First, foreigners and Mexicans were typically attracted to different kinds of economic activities (see Table 5). Foreigners were drawn overwhelmingly to export-oriented and heavy industry sectors of economic activity. Primary among these was the mining and metallurgical sector and its close relation, the railway system, as well as upstream technologies classified as diverse machines and chemical processes. Foreigners also heavily dominated patenting in areas that required more complex, cutting-edge technological and scientific know-how. These included machine construction and machine tools, precision instruments, and technologies related to light, heating and refrigeration. Table 5 Direction of patenting by Mexicans and foreigners Leading sectors (with percent of all Mexicans or foreigners in sample) Mexicans Pre-1890 textiles precision instruments agriculture chemicals light, heat and refrig. hydraulics mines and metallurgy Foreign

% 15 12 10 9 9 7 7

1904-1907 chemicals paper, educ, publicity agriculture construction medicine textiles tobacco products

% 24 11 10 9 6 6 5

1904-1907 mines and metallurgy machines chemical arts railways and trams construction precision instruments light, heat and refrig.

n=557

Pre-1890 mines and metallurgy chemicals light, heat and refrig. medicine textiles agriculture machinery

% 14 11 9 8 7 6 5 n=841

Source, see text. History of Technology, Volume Twenty-four, 2002

% 15 12 10 9 8 5 5

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In contrast, Mexicans tended to patent in fields which exhibited one or more of three characteristics: fields that were labour intensive; fields that involved the processing of natural resources (principally of vegetable origin); and fields oriented towards the urban market. That Mexicans patented in labour-intensive and often traditionally based fields does not mean that Mexican inventors were passive in the face of contemporary growth. The majority of Mexican patents in this sample were closely tied to areas of strong contemporary expansion, especially in fields oriented towards urban markets, including construction, commercial practices and food and alcohol products, as well as in fields linked to the export boom, including the processing of henequen and guayule rubber. The patent evidence suggests, in other words, that Mexican inventors were proactive in their response to new economic opportunities as long as these opportunities were within reach of their technological capabilities, and that they often used the patent system to protect their investments. Second, foreign patentees invested more heavily than Mexicans in extending the duration of their patent rights, once acquired. We can see this under two different institutional settings. In the first, between 1896 and 1903, initial patent fees conferred protection for the first five years of the full 20-year term; each subsequent five-year period required escalating fees. Of all patents eligible for renewal during this period, roughly 18 per cent paid the $50 pesos (c.US $25) for the second period. 50 Foreigners were nearly seven times more likely than Mexicans to pay the renewal fee. After 1903, the initial (and greatly reduced) patenting fee of $5 pesos bought a one-year 'provisional' patent; converting this to a full 20-year 'definitive' patent required an additional $35 pesos (c.US $17.50). While 43 per cent of all Mexican patentees in a 1906-7 sample (n=l,232) made the payment, 87 per cent of all foreigners did so. Given the institutional differences which made 'renewal' both cheaper and more beneficial after 1903, the numbers under the two institutional settings are not comparable. It is evident, however, that foreigners were consistently more willing to invest in extending their Mexican patent rights beyond the initial term. In neither case does the size of the renewal fee appear to present a decisive obstacle, although the fee's burden relative to each society's per capita income fell much more heavily on Mexicans. For Mexicans, however, the $50 peso renewal fee was a surmountable obstacle. If investment in patent rights - including the payment of renewal fees - can be generally taken to reflect an economically motivated cost-benefit decision on the part of the patentee, then the renewal evidence suggests that the objects of foreign patents were valued more highly than the objects of domestic patents, other considerations aside. That they were more frequently capital-intensive supports this hypothesis (see Table 5). Although both groups sought patents in fields of contemporary growth, the available secondary work suggests that the areas of foreign strength offered more lucrative markets for new technologies. While corporate patenting was more common among foreign than among domestic patentees (running 10-16 per cent versus 3-5 per cent after 1880), and while History of Technology, Volume Twenty-four, 2002

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foreigners also practised multiple patenting far more often than domestic patentees (roughly 25 per cent versus 9 per cent), higher renewal rates suggest that foreigners may have more highly valued the short-term prospects for commercial innovation (in sales or manufacture) than did Mexican patentees. The evidence also indicates that foreign patentees who were resident in Mexico were far more likely to pay the renewal fee for the second five-year term than were foreign non-residents - 63 per cent of all foreign renewers were resident, while only 20 per cent of all foreign patentees were resident. Unsurprisingly, perhaps, foreign residents were more likely to be involved in the innovation of patented technologies than foreign non-residents. The third major difference between foreign and domestic patentees was that the former apparently cared little about the particular specification of Mexican patent law. Neither the level nor the growth of patenting by foreigners reacted to the substantial institutional reforms of 1890 and 1903 or to the de facto administrative and minor changes of the 1880s and 1896. As we can observe in Figure 3, the trend of foreign patenting remains steady from the mid-1870s until the revolution, except for minor dips coinciding with the economic recessions of 1893-4 and 1907-8. More rigorous modelling of the patenting series as a function of demand, supply and institutional change also fails to note any significant institutional impact.51 While thousands of foreigners sought and invested in Mexican patents in order to acquire monopoly rights to their technologies, there is little evidence in the patent statistics that Mexico's substantial patent law reforms - and the reforms' implications for a patent's value - mattered much to foreigners' technology strategies. We should recall, however, that Mexico's patent system was significantly more open to foreign patenting than most national systems in the late nineteenth century, and that patenting in Mexico grew more rapidly than in every other country sample in Figure 2. Explanations for the extraordinarily rapid growth of foreign patenting in Mexico likely lie in some combination of the specification of patent law and the country's geographic proximity to the world's largest patent exporter: the USA. In contrast to the behaviour of foreign patentees, Mexicans' propensity to patent levelled off between the late 1880s and the late 1890s, between two periods of otherwise rapid growth. What accounts for this decade-long stagnation in patenting by Mexicans? It is not coterminous with the new laws of 1890 and 1903. Instead it correlates closely with changes in the cost of acquiring patent protection: with a roughly 35 per cent increase in the fees charged to Mexicans beginning in mid-1886 and with the 50 per cent decrease in initial patenting fees beginning in late 1896. Furthermore, the single largest one-year jump in patenting by Mexicans takes place between 1903 and 1904, when the initial fee fell from $50 pesos to just $5. In short, fees ranged between two and tree times annual per capita income in Mexico until after the fee reductions of 1896 and 1903 yet represented a substantially lighter burden for foreign applicants. Mexican patentees, it seems, cared little about the substantially new specification of patent rights History of Technology, Volume Twenty-four, 2002

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embodied in the 1890 and 1903 legislation, but cared a lot about the cost of patenting.52 That most technological innovation in late industrializing countries derived from imported machines and processes does not imply that domestic advances were negligible. In Mexico as elsewhere, foreigners may have increasingly dominated patenting, but the participation of nationals remained significant. While Mexicans' share of total patenting fell from 50 per cent to 20 per cent over the 30-year period, average annual numbers of Mexican patentees rose from less than 20 before 1880 to over 300 yearly by 1905-10. On a per capita basis this compares relatively favourably with the experience of the UK and the USA at roughly comparable stages of development. If UK inventors took 22 UK patents per million residents in 1850 and US inventors took 37 US patents, Mexicans claimed 21 per million residents in 1910 (see Table 4). On the face of it, the average US resident was almost twice as likely to take a patent in 1850 as was the average Mexican resident in 1910, although the gap between the UK and Mexican propensity to patent was much smaller.53 Historians have long argued that the USA in the early nineteenth century constituted a uniquely propitious environment for inventive activity; in the eyes of both contemporaries and later analysts this nation of tinkerers was 'well endowed for invention'.54 It is rather surprising, then, that the Mexican experience compares as favourably as it does with the USA, albeit six decades later. Indeed, the literature on Mexico (and, more generally, on much of Latin America) would lead us to suspect an even greater contrast: Mexicans were culturally disinclined to risk investment in innovation and would have been far less apt to invent and patent due to differences in culture and the stock of human capital.55 The evidence at least suggests that the domestic sources of inventive activity and technological creativity in Mexico deserve further study. Patents of introduction provide an additional possible venue for the participation of domestic nationals in the introduction of foreign technology, and we have seen that the Mexican system offered this possibility until the new law of 1890. But even before this, patents of introduction were insignificant in the Mexican experience. Less than 70 patents of introduction were conferred through the century, concentrated in two three-year periods (33 in 1855-7 and eighteen in 1863-5). They were otherwise nearly absent and only three were issued after 1865 and none after 1879. They comprised just 6 per cent of all Mexican patents before they were formally abolished in 1890. CONCLUSIONS Most independent nation states in the nineteenth-century world pursued economic growth (or, as most tended to put it, 'material progress') in an effort to emulate the experience of the UK and the USA or to defend themselves against economic domination by these early industrializers. Throughout the world, political elites and policy-makers saw foreign History of Technology, Volume Twenty-four, 2002

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technology as one key to achieving the material progress, national sovereignty and modernity to which they aspired. They widely recognized that importing foreign advances provided a quicker route in the short term than a narrow reliance on domestic inventiveness. This view was even more dominant in countries where low levels of human capital (often combined with Social Darwinist views of the intellectual capacity of an ethnically or racially distinct majority) further discouraged elites' faith in domestic invention. Thus governments in many late-developing countries sought ways to promote technological progress and especially to promote investment in the importation and innovation of foreign technique. Nearly all adopted national patent laws during the nineteenth century, and patent systems provided the principal (though not the only) policy tool to promote technological change in early and late industrializers alike. This paper has probed two central questions in the economic history of nineteenth-century patent laws and patenting experiences. First, what is the relationship between the institutions of patent law and patterns of technological change? Second, what can patenting data tell us about that experience of technological change? If patent law shaped patterns of inventive activity in industrializing the UK and the USA, this relationship was an exceptional one. For most of the world, patent systems were crafted, administered and reformed in economies largely dependent on the importation of foreign machines, processes and products. While we have not directly tested the 'patent incentive' - whether the provision of effective patent rights in fact yielded higher levels of investment in inventive, innovative or importative activity than would have occurred otherwise - we have explored the relationship between patent systems and late industrialization in a comparative nineteenth-century context.56 Latecomers faced an explicit choice. They could, like Switzerland and Holland, choose to forgo offering protection to foreign technologies and depend entirely on the ability of domestic technicians to imitate and improve and invent. They could take the opposite course and offer effective and virtually unrestricted monopolies to foreigner inventors - the 'American system'. Most fell in between, and the story of nineteenth-century patent law is the story of increasing convergence around a single norm. Following the late-century explosion of international trade and investment and on the heels of the 1883 Paris Convention for the Protection of Industrial Property, widespread patent law reforms yielded an increasingly homogeneous landscape in a process that was not complete until the eve of World War I. The emergent norm offered patent protection to original inventors and generally sought to facilitate foreign patenting, but it also limited and regulated patent rights in order to promote the domestic commercialization of new technologies, especially foreign ones. Patents of introduction were eliminated while compulsory working clauses were adopted. If most nations conformed closely to this norm by the end of the century, there were a few exceptions. Several countries maintained relatively weaker patent protection for foreign inventors, most importantly by continuing to offer patents of History of Technology, Volume Twenty-four, 2002

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introduction. Of those nations surveyed here, Spain is probably the most important in this small group.57 A few offered stronger rights than the norm, most importantly by minimizing restrictions on the use of the right and thus maximizing the patentees' monopoly. The USA and Mexico constituted this group. If Mexican law diverged sharply from the late-century norm, her patenting experience varied less. The aggregate patenting record of relatively late industrializing nations reveals tendencies not unlike those of the early industrializers (namely procyclical accelerations with early industrialization). However, what the records of countries like Mexico reveal about domestic technological change is somewhat more complex. Only a minority of total patents reflect domestic invention. In countries with relatively low levels of human capital and skewed income distributions, there was likely a greater volume of incremental invention and innovation that went uncaptured in the patenting record. Furthermore, the majority of total patents came from abroad and provide some measure of foreign interest in domestic technological opportunities. Although we cannot easily know what portion of foreign patents resulted in actual innovation (in the form of commercial use or sale of the particular machine or process or product), they do provide one indication of the rate and direction of a growing foreign interest in technological opportunities. Innovated foreign technologies in turn provided the foundation for growth and early industrialization in every case. Behind the explosion of foreign patenting in the second half of the nineteenth century, and especially after 1870, lay declining barriers to technology transfer and increasing institutional mechanisms to facilitate flows of foreign trade and investment. Trade in technologies comprised one part of this broader process of globalization. The internationalization of technology was further facilitated by an expanding scientific basis for technological advances in many fields (especially chemical and electrical) and by the rise of large managerial firms.58 The 1883 Paris Convention and the subsequent homogenization of national patent regimes also played a central role in this process. Yet while most nations maintained some significant restrictions on foreign patent rights, Mexico did not, and this likely explains the extraordinarily rapid growth of foreign patenting there. Yet Mexico's openness to foreign patenting and foreign technologies does not necessarily imply a more successful experience of technology transfer. Much of this latter story - largely inaccessible through the patent statistics - lies in the relationship between technology imports and a domestic technological capacity. The Mexican patent records do suggest some growing level of domestic creativity: domestic patents grew rapidly, per capita levels compared favourably with other nations, they increasingly pursued economic fields of dynamic growth, and domestic creativity was apparently stimulated by foreign advances. Although, with a few exceptions, Mexicans offered few major inventions to the national economy, the patent records suggest a growing stream of incremental improvements, innovations and adaptations. Given the infancy of the study History of Technology, Volume Twenty-four, 2002

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of technological change and its sources in nineteenth-century Mexico, each of these issues marks territory for further research. The links between patent law, patenting and technological change are not necessarily strong ones, yet the evidence surveyed here provides partial insights into the comparative experience of late industrializers. While the study of law and patenting does not allow a direct look at technological innovation and subsequent patterns of productivity growth, the specification of patent law and patenting evidence provide an important and still underutilized resource of studying the comparative origins of technological change.

Notes and References 1. The research for this article has been partially supported by the National Science Foundation and the Kellogg Institute for International Studies at Notre Dame. An earlier draft of this paper was presented at the 2002 International Economic History Association meeting in Buenos Aires, Argentina, and benefited from comments there. A special thanks to the work and comments of Patricio Saiz Gonzalez and Ian Inkster. 2. On the 'patent incentive', see Douglass North and Robert Paul Thomas, The Rise of the Western World (Cambridge, 1973), 2-3, 5, 148, 154-5; Douglass North, Structure and Change in Economic History (New York, 1981), 164-5; Fritz Machlup, An Economic Review of the Patent System (Washington, 1958), 25-44; Paul A. David, 'Intellectual Property Institutions and the Panda's Thumb', Stanford University, Center for Economic Policy Research, No. 287, April 1992; Zorina Khan, 'Property Rights and Patent Litigation in Early Nineteenth Century America', Journal of Economic History, 1995, 55, 1: 93; Zorina Khan and Kenneth Sokoloff, 'Patent Institutions, Industrial Organization and Early Technological Change: Britain and the USA, 1790-1850', in Maxine Berg and Kristine Bruland (eds), Technological Revolutions in Europe: Historical Perspectives (Northampton, 1998). 3. Christine MacLeod, 'The Paradoxes of Patenting: Invention and Its Diffusion in 18thand 19th-century Britain, France, and North America', Technology and Culture, 1991, 32:4 compares aspects of UK and French law in the eighteenth century; Khan and Sokoloff, op. cit., 1998 compare several features of US and UK law (cost and licensing features) in the early nineteenth century; Petra Moser, 'How do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs', manuscript, 2001, examines the impact of the duration of the patent across 24 European countries circa 1850-76; and Josh Lerner, '150 Years of Patent Protection', NBER Working Paper 7478, 2000a, and '150 Years of Patent Office Practice', NBER Working Paper 7477, 2000b, compare aspects of international patent law and its administration through the nineteenth century. See also Edith Tilton Penrose, The Economics of the International Patent System (Baltimore, 1951), for general discussion of international laws. None distinguish technology exporters from importers, and none wholly capture the nearuniversal international reform movement of 1883-1914. 4. The vast majority of technology exports came from industrial Europe and the USA, which also issued over 90 per cent of all patents in the world over the second half of the nineteenth century. Everyone else imported technology, while the rest of Europe issued just 7 per cent of all world patents and the non-European world issued just 2 per cent; see Ian Inkster, 'Patents as Indicators of Technological Change and Innovation - An Historical Analysis of the Patent Data 1830-1914', Transactions of the Newcomen Society, 2003, 73, 179-208. 5. See Carlos Marichal and Mario Cerutti (eds), Historia de las grandes empresas en Mexico, 1850-1930 (Mexico, 1997); Stephen Haber, Industry and Underdevelopment: The Industrialization of Mexico, 1890-1940 (Stanford, 1989); Ramon Sanchez Flores, Historia de la tecnologia y la invencion en Mexico; Introduccion a su estudio y Documentos para los anales de la tecnica ( 1980); and Edward Beatty, 'The Impact of Foreign Trade on the Mexican Economy: Terms of Trade and the Rise of Industry 1880-1923', Journal of Latin American Studies, 2000, 32: 2, among others. 6. For several exceptions, see Patricio Saiz Gonzalez, Invencion, patentes e innovacion en la Espana contempordnea (Madrid, 1999b); Ian Inkster, 'Intellectual Dependency and the Sources of Invention: Britain and the Australian Technological System in the Nineteenth Century', History of Technology, Volume Twenty-four, 2002

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History of Technology, 1990, 12: 40-64; Gary B. Magee, 'Technological Development and Foreign Patenting: Evidence from Nineteenth-Century Australia', Explorations in Economic History, 1999, 36: 344-59; and Bjorn Basberg, 'Creating a Patent System in the European Periphery: the Case of Norway 1839-1860', The Scandinavian Economic History Review, 2002, 45: 2. 7. The literature on statist interventions in late industrialization is too broad to cite here. For the classic account, see Alexander Gerschenkron, Economic Backwardness in Historical Perspective (Cambridge, 1966); for a recent contribution see Ian Inkster, Technology and Industrialization (London, 1998). 8. Mexico, Secretaria de Fomento, Memoria de la Secretaria deFomento eIndustria ... 1892 (Mexico, 1892), xxxiii; see also Edward Beatty, Institutions and Investment: The Political Basis of Industrialization in Mexico before 1911 (Stanford, 2001), ch.4. 9. This debate is in many ways similar to the late twentieth-century debate regarding patent law in the technology exporting 'north' and the importing 'south'. See, for instance, Robert E. Evenson and Gustav Ranis, Science and Technology: Lessons for Development Policy (Boulder, 1990). 10. This pattern largely maps the early French model and would be subsequently adopted in modified form by most late industrializers, as we shall see below. 11. This was the path followed by Switzerland (1869-1912), the Netherlands (1850-1907) and Japan before 1896. See Eric Schiff, Industrialization without National Patents. The Netherlands, 1869-1912; Switzerland, 1850-1907 (Princeton, 1971); Ian Inkster, 'On the "Modelling Japan" for the Third World', East Asia, 1983, 1: 165-70. 12. For one highly instructive and more disaggregated discussion of latecomers' industrialization strategies, see Ian Inkster, 'Introduction', op. cit., 1998, 1-14. 13. This does not imply that all other issues are irrelevant, but only that these four proved the decisive issues in the comparative treatment of domestic and foreign patentees in the nineteenth century. For examples of work which discusses some of these as well as other aspects of patent law, see Khan and Sokoloff, op. cit., 1998; andjanusz A. Ordover, 'A Patent System for Both Diffusion and Exclusion', Journal of Economic Perspectives, 1991, 5: 1, 43-60. 14. Offering such monopolies to introducers could be justified in a world of high transaction costs and consequently low levels of international trade and investment (mainly due to high transport costs and highly asymmetric information in international exchange). 15. John L. Kingsley and Joseph P. Pirsson, Laws and Practice of all Nations and Governments relating to Patents for Invention (New York, 1848), 104. See also Machlup, op. cit., 1958, 6-7. 16. Ariel Pakes and Margaret Simpson, 'Patent Renewal Data', Brookings Papers on Economic Activity: Microeconomics, Brookings Institute, 1989, 331-99. Registration systems allow greater overlap between patent claims, increasing potential conflict and thus creating weaker (less valuable) rights; see Ordover, op. cit, 1991. 17. As Ordover, op. cit., 1991 argues for the modern Japanese system. The cost, of course, is that registration systems leave claims of priority and novelty unresolved, increasing the uncertainty of future investors in the innovation and diffusion of patented technologies. 18. Even if compulsory working provisions go unenforced they would increase the uncertainty of patent rights for both inventors and investors in subsequent innovation. 19. On these tensions, see MacLeod, op. cit., 1991. 20. First adopters include: Netherlands, 1809; Austria, 1810; Russia, 1812; Sweden, 1819; Spain, 1820; Brazil, 1830; Mexico, 1832; Chile, 1840; Portugal, 1852; Belgium, 1854; India, 1859; Italy, 1864; Argentina, 1864; Canada, 1869; Colombia, 1869; Peru, 1869; Germany, 1877; Turkey, 1880; Japan, 1885; Norway, 1885; Ecuador, 1890; Hungary, 1894; Romania, 1906 (although some of these 'first laws' were preceded by legal provisions to award protection to inventors that were included in broader legislation to promote trade and crafts; see for instance Basberg, op. cit., 1997); United Nations Conference on Trade and Development, The role of the patent system in the transfer of technology to developing countries, New York, 1975, An for slightly different dates, see Machlup, op. cit., 1958. 21. See the summaries of national laws presented in Richard Godson, A Practical Treatise on the Law of Patents for Inventions and of Copyright: Illustrated by Notes of the Principal Cas an abstract of the Laws in Force in Foreign Countries, 2nd ed. (London, 1840); and R.W. Urling, The Laws of Patents in Foreign Countries, Translated, With Notes, etc. for the Information of I and Patentees (London, 1845), as well as Lerner, op. cit., 2000a.

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22. There are severalfinestudies of the UK patent system, including Christine MacLeod, Inventing the Industrial Revolution: The English Patent System 1660-1800 (Cambridge, 1988); H.I Dutton, The Patent System and Inventive Activity During the Industrial Revolution, 1750-18 (Manchester, 1984); and Klaus Boehm, The British Patent System. I. Administration (Cambridge, 1967). On the US system see Bruce Bugbee, Genesis of American Patent and Copyright Law (Washington, 1967). Unless otherwise noted, my comments on UK, US and French laws are based on the text of the laws themselves or on contemporary summaries of them. These are found in the following nineteenth-century guides to international patent law, published by UK or US patent lawyers and agents: Godson, op. cit., 1840; Urling, op. cit., 1845; Kingsley and Pirsson, op. cit., 1848; John Coryton, A Treatise on The Law of Letters-Patent for the sole use o inventions in the United Kingdom of Great Britain and Ireland; including the practice connec the grant; to which is added a summary of the patent laws in force in the principal foreign (London, 1855); Arthur P. Greeley, Foreign Patent and Trademark Laws (Washington, 1899); and Wallace Cranston Fairweather, Foreign and Colonial Patent Laws (New York, 1910). 23. For an eighteenth-century comparison, see MacLeod, op. cit., 1991. 24. Khan and Sokoloff, op. cit, 1998, 300; Boehm, op. cit., 1967, 63. However, none of these studies of UK patent law note whether such 'patents of introduction' were conferred at all after the late eighteenth century, and if so, to what extent. Neither Dutton, op. cit., 1984, nor MacLeod, op. cit., 1988, the most comprehensive studies of the UK system in the eighteenth and nineteenth centuries, comment on this issue. 25. It may have discouraged diffusion through limits on the number of individuals who could subsequently share in the patent right; see Khan and Sokoloff, op. cit., 1998, 301. On the increasingly open, post-1852 UK system, see Ian Inkster (ed), The Golden Age, Essays on British Social and Economic History (Ashgate, 2000), 121-43. 26. Many did allow 'patents of importation', although these should not be confused with 'patents of introduction' and typically denoted patents awarded to those who already possessed a foreign patent and their term was limited relative to domestic inventors, most often ending with the expiration of the foreign patent. On the other hand, the registration systems of many late industrializers left the sorting of claims to invention and foreign patents to the courts. 27. Germany adopted an examination system most similar to the US model; no others matched the rigour of the US examination for novelty, utility and non-obviousness. 28. An exploration of why this convergence occurred lies beyond the scope of this paper. Briefly, the late nineteenth-century growth of international trade and investment underlay the process, and it took a coordinated international form in the negotiations before and after the 1883 Paris Convention; see Penrose, op. cit., 1951; and Machlup, op. cit., 1958, 16-18. Likewise, late twentieth-century globalization has generated a similar process of intellectual property harmonization; see Vernon W. Ruttan, Technology, Growth, and Development: An Induced Innovation Perspective (Oxford, 2001), 242-7. Note also that in many cases late nineteenthcentury reform implied a sharp departure from the previous regime, quite the opposite of Paul David's argument concerning the stickiness of institutional reform; David, op. cit., 1992. 29. For a fuller account, see Beatty, op. cit., 2001, ch. 4, as well as Sanchez Flores, op. cit, 1980, ch 9; and Jorge A. Soberanis, 'Catalago de patentes de invencion en Mexico durante el siglo xix (1840-1900). Ensayo de interpretacion sobre el proceso de industrializacion del Mexico desimononico', Tesis de Licenciatura, UNAM, 1989, 211-34. 30. Manuel Dublan and Jose Maria Lozano, Legislacion Mexicana; o, coleccion completa de las disposiciones legislativas expedidas desde la independencia de la republica ... 1687-1910 (M 1832), 2, 427-8. 31. For one sample of monopoly rights conceded in the 1850s, see Mexico, Secretana de Fomento, Memoria de la Secretaria deFomento eIndustria ... 1857 (Mexico, 1858), doc. 29. 32. Dublan & Lozano, op. cit, vol. 6, 219-20; vol. 20, 179-83; vol. 26, 213. 33. Foreign patents in Mexico were also independent of the original foreign patents, whereas in most countries a patent granted for an invention previously patented in another country expired with the original patent. See, for instance, the Brazilian law in Fairweather, op. cit, 1910, 146. 34. For discussion and evidence on juridical treatment of Mexican patents, see Beatty, op. cit, 2001, ch. 4.

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35. Note that other studies of comparative nineteenth-century patents laws which do not aggregate the period of reform (c.1883-1914) fail to note this convergence; see, for instance, Lerner, op. cit, 2000a. 36. On both points, see Beatty, op. cit., 2001, ch. 5. 37. Caveats include: not all inventions are patented or patentable; not all patents represent truly novel and useful inventions, especially when conferred under registration systems; while patent counts treat all inventions equally, patented inventions range widely in their commercial value, from the fundamental to the frivolous; the propensity to patent can vary by industry, country and technology; not all patents are of commercial value, and indeed many (often most) are never commercialized; what is described in the patent specification is often not what constitutes the ultimately useful invention. For discussion of these issues, see K. Pavitt, 'Patent Statistics as Indicators of Innovative Activities: Possibilities and Problems', Scientometrics, 1985, 7: 1-2, 77-99; Zvi Griliches, 'Patent Statistics as Economic Indicators: A Survey', Journal ofEconomic Literature, December 1990, 28: 1661-707. For other sceptical views, see Trevor Griffiths, Philip A. Hunt and Patrick K. O'Brien, 'Inventive Activity in the British Textile Industry, 1700-1800', Journal of Economic History, 1992, 52: 4, 881-906; Patrick K. O'Brien, Trevor Griffiths and Philip A. Hunt, 'There is Nothing Outside the Text, and There is No Safety in Numbers: A Reply to Sullivan', J ournal of Economic History, 1995, 55: 3, 671-2; Joel Mokyr, Lever of Riches: Technological Creativity and Economic Progress (New York, 1990), 2 and MacLeod, op. cit., 1988, 157. 38. The most prolific users of patent statistics to examine patterns of inventive activity in the USA are Jacob Schmookler, Invention and Economic Growth (Cambridge, 1966) and Kenneth Sokoloff, 'Inventive Activity in Early Industrial America: Evidence from Patent Records 1790-1846', Journal ofEconomic History, 1988, 48: 813-50 as well as his multiple collaborations with Zorina Khan and Naomi Lamoreaux. See also Richard J. Sullivan, 'The Revolution of Ideas: Widespread Patenting and Invention During the English Industrial Revolution', Journal of Economic History, 1990, 50: 2, 349-62; Birgitte Anderson, Technological Change and the Evolution of Corporate Innovation: The Structure of Patenting 1890—19 (Cheltenham, 2001); Ian Inkster, 'Technology Transfer in the Great Climeractic: Machinofacture and International Patenting in World Development circa 1850-1914', History of Technology, 2000, 21: 87-106 and Inkster, op. cit., 2002, on the USA and UK. These studies make it difficult to escape the conclusion that patents provide a unique and useful source for the study of trends in investment in inventive activity, especially once patenting rates reach relatively high levels. Notably, most sceptics of the utility of patent statistics are those who study eighteenth-century Britain; see MacLeod, op. cit., 1988, 157; Mokyr, op. cit., 1990, 251; and Griffiths et al, op. cit, 1992. At that point, as in Mexico before 1880, it is likely true that patents reflected inventive activity in an 'erratic and tangential manner' (MacLeod, op. cit., 1988, 157). The depth of evidence available in patent statistics and their characteristic consonance with economic activity more broadly only strengthen Schmookler's comment: 'We have a choice of using patent statistics cautiously and learning what we can from them, or not using them and learning nothing about what they alone can teach us'; Schmookler, op. cit., 1966, 56. See also the discussion in Dutton, op. cit., 1984, 5-7. Of course, any effort to use patent statistics to examine underlying patterns of investment in new technologies must weigh the impact of institutional change on the propensity to patent as well as variations in the propensity to patent across industries and regions. For discussions of such issues, see Pakes and Simpson, op. cit., 1989. 39. For one notable exception, see the work of Patricio Saiz Gonzalez on Spain (Saiz Gonzalez, 'Patentes, cambio tecnico e industrializacion en la Espana del siglo xix', Revista de Historia Economica, 1999a, 17: 2; and Saiz Gonzalez, op. cit., 1999b). Other studies which utilize patent evidence beyond the UK and the USA include Inkster, op. cit., 1990; Basberg, op. cit., 1997; and Magee, op. cit, 1999. 40. This discussion is based on several samples drawn from a database of roughly 12,000 Mexican patents conferred between 1850 and 1911; see Beatty, op. cit., 2001, appendix 2. The nature of the Mexican patent data severely constrains the depth of analysis possible relative to what has been done with the US patent data. The Mexican documentation, for instance, contains no systematic information about the professions of patentees, about their place of residence within Mexican states and districts, and contains little information about trades, assignments and licensing. History of Technology, Volume Twenty-four, 2002

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41. Ideally, patent applications provide the best measure of interest in technological change. All of the data in this paper, however, refer to patent conferrals in Mexico. The available archival evidence is not sufficient to reconstruct an annual series of patent applications. Because the Mexican patent system simply registered patents, the ratio of conferrals to applications was high (exceeding 90 per cent), and anecdotal evidence suggests that the ratio remained constant through the 1850-1911 period. 42. For a similar presentation on which this is based, see Saiz Gonzalez, op. cit., 1999, 114-23. 43. The argument that patenting in Mexico was demand driven - economically motivated - rests on several points: as we noted, patenting is generally procyclical and proves very sensitive to macro-economic conditions (although the quality of the data on economic investment for nineteenth-century Mexico do not allow us to perform exercises of the kind Schmookler conducted for the USA in the twentieth century); we can observe many millions of pesos invested in acquiring, advertising, trading and defending Mexican patents; and the distribution of patenting by industry and sector aligns well with the distribution of investment across the Mexican economy (more on this below). There are always, of course, some portion of patents which were not motivated by economic gain, but these proved a small minority of the total. For supporting evidence from other nations, see Schmookler, op. cit., 1966; Sokoloff, op. cit., 1988; Dutton, op. cit., 1984; Saiz Gonzalez, op. cit., 1999; Inkster, op. cit., 2000. 44. Beatty, op. cit., 2001, ch. 4. 45. As Christine MacLeod argues for the late eighteenth-century British case (MacLeod, op. cit., 1988, 157). 46. Practically, the degree to which patents provide a venue for the transfer of the new knowledge embodied in patent specifications and descriptions depends partly on the administrative requirements of these materials and their accessibility to the public. 47. Beatty, op. cit., 2000; Enrique Cardenas, 'A Macroeconomic Interpretation of Nineteenth-Century Mexico', in Stephen Haber (ed), How Latin America Fell Behind (Stanford, 1997), 65-92. 48. Comparing per capita measures in the USA and Mexico requires first deciding on the appropriate periods of comparison. While any such comparison is bound to be problematic, the goal is not only to provide a relative indication of 'high' or iow' levels of patenting, but also to seek clues which elucidate the factors behind divergent national experiences. The secondary literature on both countries agrees that these periods contain the beginnings of industrialization, that is, the first sustained investment in large-scale manufacturing enterprises and the beginning of a sectoral shift away from a rural population devoted to agriculture and towards an urban population increasingly engaged in manufacturing and urban services. These two periods also witnessed the early construction of transport networks, and population sizes are roughly comparable. 49. This was increasingly likely to be the case following the International Paris convention of 1883, after the new law of 1890, which strengthened the rights of foreign inventors, and after Mexico's 1903 signing of the Paris Convention. Cross-checking a sample of Mexican patents taken by US residents with the US patent records published in the US Annual Report of the Commissioner of Patents confirms this. 50. 18 per cent is comparable to levels in other late industrializing countries. Pakes and Simpson, op. cit., 1989,findthe same in their study of patenting in Sweden and Norway during the 1960s. They find also that examination systems typically yield longer renewals than registration systems. 51. Regression models were performed on a variety of specifications, including lagged versions of the independent variables; see Beatty, op. cit., 2001, ch. 5. 52. Chow breakpoint test results confirm the significance of the sub-period division 1878-87-96-1903 at the 1 per cent level. The results worsen notably if 1890 is added to any plausible sub-periodization. 53. Mexico's combination of low fees and a registration system in 1910 likely biases the Mexican numbers somewhat upward relative to the US and UK numbers, although the complete centralization of the Mexican system in the capital likely provided some counter to this bias for many Mexicans. 54. Sokoloff, op. cit., 1988, 819.

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55. See, among others, Larissa Adler Lomnitz and Marisol Perez-Lizaur, A Mexican Elite Family 1820-1980 (Princeton, 1987), 114-15, 220; Mauricio Tenorio, Mexico at the Worlds Fairs: Crafting a Modern Nation (Berkeley, 1996), 138. 56. For one effort that comes to a negative conclusion, see Beatty, op. cit., 2001, ch 5. For others who argue against the utility of patent law in late industrializers, see Scherer, op. cit., 1980, 447; Penrose, op. cit, 1951, 100, 116-17; Ruttan, op. cit., 2001, 542-7. For one counter argument in a similar context, see David, op. cit., 1992. 57. See Saiz Gonzalez, op. cit., 1999. 58. Ross Thomson and Richard R. Nelson, 'The Internationalization of Technology, 1874-1929: Evidence from the US, British, and German Patent Experience', manuscript, 1996.

History of Technology, Volume Twenty-four, 2002

T h e

M a n a g e m e n t

I n t e l l e c t u a l H o m e

P r o p e r t y

a n d

B a b c o c k

&

a t

A b r o a d : W i l c o x ,

1 8 5 0 - 1 9 1 0 . KRISTINE

o f

1

BRULAND

INTRODUCTION It is common today to hear the argument that we are involved in a new type of knowledge-based economy, in which the primary asset of a firm is its intellectual capital, and in which intellectual property and the modes of its appropriation are central to business strategy and operations. However, the patent system is in fact one of the oldest economic institutions of capitalism, and although its functions have changed over time, its existence has been consistent with the existence of knowledge-based firms for many years. Of course the actual structures and operations of patent systems have varied across countries, with effects that are yet to be fully analysed.2 One question that might be raised about the patent system concerns the extent to which it has functioned to protect individual inventors, as opposed to the extent to which it has been used by large firms as part of a consistent strategy of knowledge management and protection of intellectual capital. Is the latter a relatively new phenomenon, or has it been a part of capitalism over a long period? Can this be related to the debates on Victorian economic performance, and to claims that there was some kind of technological failure on the part of British firms (that is, were Victorian firms in Britain deficient in the creation and protection of intellectual property)? 3 This paper looks at such issues by discussing aspects of knowledge management in the major UK engineering firm Babcock 8c Wilcox Ltd. The argument here is that active policies of knowledge management, centred on the protection of intellectual capital, were a key aspect of the late-nineteenth-century engineering industry at least as represented by this company. Of course this is only one company. However, the Babcock 8c Wilcox technology (both products and processes) formed part of very History of Technology, Volume Twenty-four, 2002

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major developments in engineering in the middle and late nineteenth century. These included the development of standardized production, the development of interchangeable parts, the emergence of standardized instrumentation (in gauges, for example), substitution of steel for wrought iron in machinery, and new approaches to logistics. So in examining this company, we are looking at a firm which both led and exemplified a set of technology developments of great importance. The period being discussed here was one of very great expansion in installed steam power in Europe, and Babcock & Wilcox were a major element in that expansion. But this technology was also central to the process of electrification, a key technological development of the late nineteenth century. Power generation raised a big problem: it required large volumes of steam produced at high pressure, especially after the development of the steam turbine by Charles Parsons in the 1890s. The Babcock & Wilcox inclined water-tube boiler was actually a very early entrant here, even before the Parsons boiler. It operated at significantly higher pressures than rivals, up to 200 pounds per square inch, and was the only practicable technical and economic solution to the problems posed by electricity generation. 4 A very early application, in 1881, was for the Edison Electrical Light Company in Holborn, and 24 Babcock 8c Wilcox boilers were installed at the London Electricity Supply Company by Ferranti in 1887-8.5 This product was in wide application and therefore crucial to the large technological transitions of the later nineteenth century. PATENTS AND THE FOUNDATION OF THE FIRM The British Babcock 8c Wilcox enterprise was founded in the early 1880s, as a subsidiary of a US parent. Both firms specialized in steam technology - boilers, ancillary equipment, generators and so on. The original basis of the firm was in fact a patent, taken out in the US in 1856 by Stephen Wilcox, on a new type of boiler that reduced the incidence of boiler explosions, which had been a major hazard with early steam technology.6 The technology consisted essentially of inclined-tube boilers, in which water was heated in an array of tubes, rather than a large 'shell' boiler. Not only the boiler tubes, but most of the other parts as well, were much smaller than existing boilers, so in the event of rupture or other failure the rate of escape of steam or water was far lower. This gave three production advantages. First, components (being smaller) were far more easily transportable to sites. Second, it was possible to develop boilers with much larger total steam output. Third, it was possible to construct boilers that could withstand much higher pressures. The US firm grew significantly, and in 1881 was reorganized with new shareholders and a line of credit with the Singer Sewing Machine Manufacturing Company, with which it had a strategic partnership. 7 Even at this stage, the patents held by the company were important, with one of the shareholders remarking that the company was based 'on wind and patents, for really that was the sum and substance of their assets, with History of Technology, Volume Twenty-four, 2002

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nothing to work on except six month credit with the Singer Mfg. Co.' 8 The subsidiary Babcock 8c Wilcox founded near Glasgow in the same year was a considerable success, establishing sales agencies and markets across Europe, and becoming a significant supplier of steam boilers. In the years after 1881 the output of the Babcock 8c Wilcox companies in the US and UK grew very dramatically, as Table 1 indicates. These sales were distributed around the world. The geographical location of sales in the 1880s was as shown in Table 2. Table 1 Sale of Babcock 8c Wilcox steam boilers from offices and agents in the USA and Cuba, and from Europe 1881-9, in horsepower Year

USA and Cuba (HP)

Europe

1881

27,441 38,115 38,272 23,581 19,097 24,494 35,825 40,596

2,461 5,771 7,054 12,531 16,941 17,229

1882 1883 1884 1885 1886 1887 1888 1889

105

28,422 39,365

Sources: Information from Annual Report of the President to the Stockholders of the Babcock & Wilcox Co.,12.01.1887; To the Stockholders of the Babcock & Wilcox Company, 08.02.1888; Books Glasgow and Renfrew. B&W archive, UGD/309/2/15/1, UGD/309/2/15/1 and UGD/309/3/4/311-15.

Table 2 Geographical distribution of boiler sales from Glasgow, October 1881-June 1890 (job nos 1-1001) Contracts/place of erection Europe UK Other Cuba USA Unknown Total:

554 372 194 88 5 c.16 1,229

Source: Babcock & Wilcox Archive; based on Job Books Glasgow and Renfrew, 1881-1890, UGD/309/3/4/311-15 and UGD/309/3/4/311-22.

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PATENTING A patenting programme accompanied these high growth rates of output, and from the beginning of the UK operations, patenting and the acquisition of licences appear to have been of central significance to the directors of the company. There seem to have been two key patents for the basic technology of the firm, namely the US patent 16043 of 1867, and GB patent 1154 of 1873; these cover the complete 'Cast Iron Front' boiler design which formed the firm's main product. Later patenting by the UK company consisted partly of patents transferred to it by the US firm, and partly of self-developed patents (but of 23 assignments of patents to Babcock 8c Wilcox Ltd between 1900 and 1910, only ten were from the US company). Patenting was perceived by the principals as very important to the company. In 1883 the director Stephen Bennet wrote to his colleague Pratt concerning purchase of a relatively minor patent, T think we should by all means own the patent - It will be a valuable block in the wall of patents we ought to erect about our boilers - at once.'9 This attitude to patents was reflected in persistent patenting over the following 20 years. By early 1888 the British company owned 73 US patents and 27 foreign patents.10 A subcommittee of the board estimated the value of these patents at $75,000, although this figure should not be taken too seriously (it was chosen by the committee during a recess in a board meeting, and seems to have reflected a suitable balance sheet number). 11 However, the board was well aware of the value of its patents, and this is a theme that recurs in the board minutes: whereas many valuable patents are not presented in the capital stock, and therefore resolved that capital stock of co be increased by a sum equal to its present capital stock of 225,000 dollars, making a total of 450,000 dollars, provided that the requisite two thirds interest of the stockholders consent. Adopted.12 In 1891, the British company became an independent entity, floating on the London stock exchange. Once again, the intellectual property rights were central in the foundation of the company. The prospectus stated that Babcock & Wilcox Ltd. had been formed for the purpose of carrying out an agreement with the Babcock & Wilcox Company, of New York, for the purchase of the several Letters Patent mentioned below, and the goodwill and plant of the business as a going concern, in connection with the manufacture and supply of their well-known Water Tube Steam Boilers heretofore carried on by that Company in Glasgow, London, Paris, and elsewhere, other than in the United States of America and Cuba.13 A formal agreement transferred patent rights to the UK company, although not everyone shared the views of the prospectus regarding the patents. Despite the rapid growth of the company, one financial newspaper wrote that '£240,000 is an immense sum for the public to pay for History of Technology, Volume Twenty-four, 2002

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practically "patent rights" in the boiler business, and the point is, when the patent rights run out, the boiler will be open to everyone to make.' Nevertheless the launch succeeded, and Babcock & Wilcox Ltd. paid the Babcock & Wilcox Co. for patent rights and goodwill, with rights covering 85 patents in 12 countries. Both companies continued to develop the technology and to patent throughout the world. In 1907 a further major agreement between the companies was signed, assigning rights over a range of patents to each other, for use in the various parts of the world on which each focused. The basis of the division was that the American firm had exclusive access to the US and Cuba, while the UK firm had access to the remainder of the world market. These rights covered 28 UK patents, 2 French patents, 8 Belgian patents, 10 Japanese patents, and 11 Canadian patents. These appear to have been separate lodgements of the same patents, so this is a division of the market rather than a division on the basis of separate inventions. All of the patents dealt either with improvements in boilers and generators, or with process improvements related to the manufacture of boilers and generators. The agreement makes it clear that the rights to these patents were seen as central to the operations of the two firms, so that by 1907 each firm had a clear view of its core technologies, and identified these technologies with a range of patent rights, sought for and applied globally. PATENTING ACTIVITY AND THE COMPANY BOARD One indicator of the importance of patents to Babcock 8c Wilcox is the attention they received, throughout the early history of the company, at board level. During the period 1900-10 there were 90 board meetings of the UK company, with patents appearing as an agenda item at 39 meetings (not including meetings at which routine aspects of patenting, such as current valuations, were simply reported). The board minutes reveal that five basic dimensions of patenting were monitored: patent applications, licence agreements to use the patents of others, the purchase by Babcock 8c Wilcox of rights to a patent (and the assignment of patent rights to Babcock & Wilcox, usually by employees), joint patent applications with others, and general authorizations for others to use patents. Occasionally other aspects of intellectual property would be discussed, such as the registration of trademarks in various parts of the world. THE TECHNOLOGICAL TRAJECTORY AND FIELDS OF BABCOCK & WILCOX PATENTS Prior to the invention of the first Babcock boiler, main boiler designs involved substantial riveted vessels containing large volumes of water. Catastrophic failure of the boiler shell was frequent and very dangerous; in 1862 there were 34 explosions in the UK causing 102 deaths.14 The Babcock design concept was based on straight tubes grouped together and inclined. This was unquestionably a radical innovation, and one with a History of Technology, Volume Twenty-four, 2002

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long-lasting impact. All boilers for power stations and large industrial uses, for all fuel sources including the most recent gas turbine technology, are based on a recognizable evolution of this concept. Rival design concepts are confined to much smaller applications. So what we have in the case of this company is a major design breakthrough, in fact one of the most important in the engineering history of the world. The patenting programme of the company can be summarized as going in two related directions. On the one hand, the basic design has been continually modified, extended and developed, and this has continued until the present day: essentially a programme of more or less incremental improvements over a 150-year period. On the other hand, the company has patented tools, equipment and processes used in constructing its primary technology. The company has maintained its competitive position (although sometimes with considerable problems along the way) by developing and patenting state-of-the-art incremental innovations on the basis of its fundamental design breakthrough. The Appendix to this paper provides details of all traceable patents from records in the Babcock 8c Wilcox archives from 1873 to 1897. It is almost certain that this series does not cover all of the important or relevant Babcock & Wilcox inventions. Babcock 8c Wilcox's own publications, in particular its book Steam, which specifically covers 'the evolution of the Babcock 8c Wilcox cross-tube boiler', describes many key devices that are not found in the patent documents. Second, there appears to be insufficient overlap between the US and the UK patent documents - we would expect any US invention patented in the UK to be found in the US documents, but this is not always the case. So we are looking at a subset of the overall technology of the company. The patent applications specify a range of details concerning each patent, which are summarized in the Appendix. These cover: Names of specific inventors The patent agent used (if any) The subject of the patent, meaning the specific technology being developed The aim of the invention The UK patents covered six related technical fields: boilers, marine boilers, boiler parts, production machinery, engines, and auxiliary equipment. Most of the patents have one primary technical field, although some cover more than one field (such as marine boilers and engines). In the early years, patenting is heavily concentrated in boilers and boiler parts. In the 1890s, however, the emphasis shifts strongly towards production machinery, suggesting a shift from product to process innovation in the company's innovation efforts. At the same time, the aims of the patents shift also: from safety-related characteristics (which were of course the primary selling point of the Babcock 8c Wilcox technology in the first place) towards cost-reducing technologies in later years. This shift accords with Abernathy and Utterback's model of product-process innovation in the twentieth century. Abernathy and Utterback argued History of Technology, Volume Twenty-four, 2002

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that patenting by large companies typically followed a sequence in which innovation focused first on the product, taking the form of a tran-sition from fluid technical forms to a specific standardized form. As the product became more specific in form, attention shifted to production costs, and so inventive and innovative activity focused more on process innovations associated with the main product. This pattern of trajectories is illustrated in Figure 1. Figure 1 Utterback and Abernathy's model of innovation dynamics Product Innovation

Fluid

Process Innovation

Transition

Specific

Source: J.M. Utterback, Mastering the Dynamics of Innovation (Boston, Mass., 1994), xvii. Examining the Appendix from this perspective, the data appears to divide broadly into two periods - 1873-89, and 1890-7. Each period has approximately the same number of patents (34-35), but the emphasis on subjects and objectives changes. In the first period, 26 of the patents are concerned with the core product technology of boilers; this falls to 19 in the second period. At the same time, only five of the patents are concerned with production methods in the first period; in the second, this triples to 15. The emphasis on safety diminishes, being cited in 23 of the first-period patents, and 11 of the second. Cost reduction as an aim increases, from 12 to 19 between the two periods. These trends are consistent with the model used by Abernathy and Utterback to illustrate the technology dynamics of major twentieth-century firms. How can we describe the overall patenting strategy of the enterprise? One main aspect of the strategy of Babcock & Wilcox was to consolidate and to improve the basic product they were selling, namely the safety steam boiler. The patent series reveals the firm's dedication to continuous effort, which resulted in an extremely large number of smaller, cumulative improvements. Secondly, they pursued improvements in the production process of the steam boiler. Cranes, tools and a range of other equipment were developed and patented. Some areas received more attention than others, and there are History of Technology, Volume Twenty-four, 2002

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clear priority areas for invention. One such area was materials, and in particular the change from headers made of cast iron to headers made of steel. Finally, it is important to note that the firm bought in innovations. They bought patents held by independent individuals, or collaborated with others in taking out patents. An increasingly important method was to gain patents through acquisition of other firms that held patents. Incidentally, the firm seems to have been eager to watch developments within other firms, customers as well as competitors. In connection with the sale of a boiler to the Popp Co., Henry Knight, in Paris, writes to Charles Knight, the principal in Glasgow, that the buyers had insisted 'that a man from our house watch the working of the installation of our boiler'. Henry Knight had been positive concerning this, and acted as if it was an imposed condition. Yet, he remarked, in reality I am very glad to accept it, because it will give us an entrance into the installation of the Popp Co., by which means we can accompany any visitor to whom it would be interesting to see the installation ... if so, a card of entrance will be given to the Babcock Co. You no doubt understand my views.15 What determined which path was followed? Here we can only make provisional suggestions, but on the one hand they seem to have acquired firms and their patents to kill off competition. On the other, they acquired firms that make important inputs (such as tubes) as a way of controlling key elements of the technology. PATENTING AND DIRECTOR/EMPLOYEE CONFLICTS Most of these patents were generated by a small group of leading figures within the firms on each side of the Atlantic, in the UK Charles Knight and J.H. Rosenthal and in the US George E. Palmer. Although all three were engineers, it seems to be the case that they had the specific responsibilities for preparing patent applications, and that this reflects a policy by the company - it does not necessarily imply that they were responsible for the inventions per se. Christine MacLeod has emphasized the persistent conflicts arising in patenting in the nineteenth century due to the fact that inventions emerged largely from working practices on the shop floor, and were developed by working men.16 This trend was confirmed by Inkster, who showed that industry and craft-based patentees remained in numerical ascendancy over generic engineers in the period 1850-70.17 Reflecting these wider phenomena, conflicts over individual versus company rights in patents were an issue in Babcock 8c Wilcox throughout this period. The basic policy of Babcock 8c Wilcox was that rights in inventions were assigned to the company. This caused problems at all levels. For example in 1885 the engineer Kent wrote to Charles Knight (one of the principals in Glasgow) concerning a potential directorship in the US company: History of Technology, Volume Twenty-four, 2002

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The day before the election Messrs B&Co gave me to understand that the position of director involved the duty of surrendering to the B&W Co without compensation all rights to patents or inventions I might make. I promptly refused ... which the US laws secure to me as an employee (Employees right to their own inventions have been repeatedly sustained by the US courts). ... their greatest mistake ... only themselves to blame.18 N.W. Pratt, the general manager, wrote from New York to Charles Knight putting the other side of the case: He thought that it was possible to be in the company's employ; know all about their business and mechanical plans, and still go out and get patents on practically the same things in his own name and hold them. It was the knowledge of this very thing which enabled me to prevent his going into the directorship this year; otherwise he would have gone in .... they think I am right now ... I got the information that he tried get out patents on boilers and furnaces ... I suggested to Babcock that Kent should sign up any improvements to company, the same as the rest of us ... Babcock said this to Kent ... I counted on Kent being a fool and was right ... he would not listen 'giving away his brain without being paid for it'.19 These conflicts over intellectual products were not unique, and in fact continued in many companies throughout the twentieth century. In this respect, Babcock & Wilcox were precursors of a long-standing problem over ownership of intellectual property. LITIGATION Babcock 8c Wilcox not only patented consistently but also were constantly vigilant and aggressive in actual and threatened litigation. Both the extant correspondence and board meeting minutes are full of discussion of legal issues surrounding the patent portfolio, and litigation was frequent. The company also reported regularly to stockholders on the progress of litigation: the 1887 annual report, for example, saying that: The suit for infringement against the Safety Steam Generator Co and the Pioneer Iron Works is progressing satisfactorily, and it is expected that it will be argued before the Court early in this year. The Cuban suit has been decided in the lower Court in our favour, giving us the seven boilers seized, the sum of $2,900 indemnity and all our expenses. The case is now before the Higher Court on appeal, and there is little question but that the decision of the lower Court will be affirmed.20 Ten months later, this particular episode was reported in the board minutes, in a way that indicates the importance and objectives of the patent strategy to the company:

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The President reported settlement completed with Pioneer Iron Works and Albert Franke of all suits pertaining against said parties, including the suits in Cuba and in the US. ... that Pioneer had paid BWCo $6,500 cash in lieu of all claims damages and costs in the several suits and agreed to submit to judgement both in Cuba and the US acknowledging the validity of said patents and agreeing forever to abstain from infringing them. They also agree that they will sell no more water-tube sectional boilers in Cuba except those made by this Co. We agree to give up to them the boilers that were seized in Cuba, they paying all expenses of the same, we allowing them to erect these boilers in Cuba or elsewhere as they may see fit, on condition that they shall put a plate upon them which we shall furnish for that purpose ... the settlement... a decided gain ... in that it establishes our patents in Cuba beyond any question and will prevent the necessity of such suits in future against other parties. It also gives us a clear field in that country in boilers covered by our patents.21 It was not simply actual patent infringements which were monitored. In 1893, the Columbian Exposition Company was sued for allowing a rival, the Stirling Boiler Company, to exhibit at the Chicago exposition. Babcock 8c Wilcox immediately filed for an injunction, which they won, and replaced their rivals in the exhibition.22 THREATS OF LITIGATION The company not only litigated but also made clear to others its constant readiness to litigate if necessary. In 1890, for example, Henry Knight wrote from Paris to Charles Knight concerning an interview with a French businessman, M. Bonnet. The latter referred to the 'value of our patents in France', and remarked that ... they were no longer valid, the proof of which was that the Excelsior boiler was an imitation of ours. I told him that we were aware that such a boiler existed, but were not aware of any installation of it as yet, and that as soon as such a thing took place we would not hesitate to prove judicially the validity of our patent, that the Babcock boiler was the soul of the Company, and that an attack on it could not be left unpassed. He said that as far as he knew our patents were no longer valid. I told him that from very good sources I had learned at a first interview that our bases on which to prosecute any such infringement were perfectly good. This was all carried on in a very pleasant way and he turned from the conversation, saying 'well, it is not business of ours, any way ,..' 23 Knight did not confine himself to the validity of the patents in this letter, but went on to discuss the strategic uses of litigation: If we lose it will have the effect - knowing how long you can continue one of these suits - not only of checking the infringers for a considerable length of time, but also, and which is more important - buyers.24 History of Technology, Volume Twenty-four, 2002

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He pointed out that it was not difficult to 'find basis for such a suit ... and to stretch it out if we so thought, for a considerable length of time ... besides the advertisement connected with it is not to be despised ... The fact of B&W Co suing imitators speaks for itself.'25 It seems to be the case that publicity aimed at potential customers was a key element in threats of litigation, and in 1892 a round letter appears to have been sent to clients concerning a potential imitator: Dear Sirs, We regret that we are compelled to inform our customers and friends that a company recently established under the name of The Mills Patent Sectional Co Ltd Manchester, are manufacturing and offering for sale Water tube boilers containing certain features which are imitations of certain parts in the Water Tube Boilers for which the B&W Co [sic] have gained such an universal reputation and which we are advised are serious infringements of the Patent owned by us. We are advised that it is necessary for our own protection and that of possible customers to publicly announce that such is the case and to state that in addition to proceedings which we have already commenced against the Mills Patent Sectional Boiler Co Ltd. to restrain the infringements of our patents, we shall be compelled to take such other proceedings against all persons and firms purchasing and using boilers obtained from the Mills PSBCL which infringe our patents, as may be necessary for the protection of our interest and business. We regret to have to add that in addition to infringement of our Patent the Mill company Ltd have issued and are continuing to circulate and publish Circulars and catalogues containing numerous statements in disparagement of the boilers manufactured by us and of our business of manufacturers of our well known water tube boilers: we desire to point out that many of the statements are manifestly inaccurate and exaggerated.26 But this case also involves the familiar phenomenon of employee piracy. He goes on: 'We think it further necessary to explain that the Johnson Mills who gives his name to the Mills Ltd and Mr Jonathan Gresby who is an active official of that company were both formerly in the employment of the Babcock 8c Wilcox Co.' PATENTS AND THE COMPETENCE OF THE COMPANY Despite the great importance which the company gave to its patenting programme, it is clear that members of the management were under no illusions as to the significance of a patent as opposed to all of the other forms of technical competence that were required to run the operations. They exhibited a very clear understanding of the fact that the company had other forms of specialized knowledge that were central to its History of Technology, Volume Twenty-four, 2002

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The Management of Intellectual Property at Home and Abroad

competitiveness. In 1889 Charles Knight in Glasgow wrote to Babcock & Wilcox in New York: We have no particularly valuable patents, that is intrinsically. The value of our patents applies in the completeness of our organization. It is true that the word patent has its effect upon the public in general, and that it may be assured, more especially on this side of the water, that thefts of patents are not frequent. We need not have any fear on this score, in as much as our patents are not such as to tempt. A special plant, and knowledge, is required for our construction, and there is no likelihood that anyone will embark in a competitive business. If such is the case we are not in a position, even if the lines upon which our company is formed, warranted it, to sell at any time one or all of our patents in any particular country or district for a given sum of money in exchange for all our rights in connection therewith. Therefore it is evident that the firmest base for our agency arrangement is that of complete reciprocity and non-exclusiveness. As a manufacturing concern we cannot be sellers of patents, and we cannot contemplate the granting, under any circumstances, of the exclusive right to agents or licensees.27 It is the combination of patenting and productive competence which makes the company work, and Knight is quite clear that the company cannot survive by simply being a producer of technical knowledge: that is, by selling or assigning knowledge products in the form of patents. The issue of related competences arises with respect to such activities as testing for example. In this sector, with large-scale equipment, much development work, testing, etc., had to happen on the site where the equipment was erected. So managers continually stressed the importance of having good men, and this becomes an issue particularly when discussing how they should operate abroad (in Germany, for example). CONCLUSION This paper focuses on only one company, and so cannot in any way claim generality for its results. From the middle of the nineteenth century Babcock & Wilcox was a company which organized itself around the production and resolute defence of intellectual property. The evidence suggests rather conclusively that, to the central actors in the company, the primary resource of the company was knowledge, not simply in the formal codified sense of a patent, but also in the sense of the business skills which put the technology of the company to work. However, even though this is but one company, the results may well be of broader significance. The results of this study are for example consistent with the arguments of Christine MacLeod and Ian Inkster, to the effect that workplace invention was a key feature of nineteenth-century industry, and support also the claims of David Edgerton to the effect that innovativeness is something to be studied at company level, and is not well History of Technology, Volume Twenty-four, 2002

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grasped by the existence or non-existence of formal R&D departments (Babcock 8c Wilcox did not in fact establish an R&D department until well into the twentieth century). MacLeod et al have shown that steam patenting continued throughout the nineteenth century: by 1900 there were 432 steam-related power patents in existence, and so the activity by Babcock & Wilcox discussed here must have formed only a minor part of a much more widespread process of knowledge creation.28 Robert Fox and Anna Guagnini have drawn attention to the variety of research strategies followed by European industrial firms in the nineteenth century. They focus less than other historians on the role of the laboratory and research-led strategies for innovation, and much more on alternative development paths. Some of their findings are also borne out by the story of Babcock & Wilcox. For example, they argue that low-key research, 'an intensely practical problem-solving activity', played a central role in nineteenth-century engineering development. So 'instead of a unidirectional model of research feeding industrial practice, we have taken a broader view of both the nature and the sources of improvements that characterised the electrical industry ...' 29 They draw attention to the processes of adaptation and improvement: even when large firms were selling abroad local firms and competencies played a crucial role in setting up equipment, adjusting it, and providing knowledge of the new context. These types of practice were found extensively in Babcock & Wilcox's practice, and so its experience may be typical rather than atypical of engineering firms at that time. Babcock & Wilcox was not simply a company with an innovation. It was a highly innovative firm, consistently developing a flow of new products and marketing them globally, on a technological trajectory which has lasted for a century and a half, and is as yet unfinished. If this account is generalizable, then it seems clear that modern arguments claiming that a new knowledge-based economy emerged in the late twentieth century are somewhat behind the times. The modern knowledge-based company was active in recognizable form at least 125 years ago, and this firm in particular was exploiting knowledge as a primary resource throughout the last quarter of the nineteenth century.

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The Management of Intellectual Property at Home and Abroad

Appendix: Babcock & Wilcox - UK Patents 1873-97 This Appendix lists the UK patents taken out by Babcock 8c Wilcox in the UK in the two decades after 1873. The first summary table lists patent numbers, inventor(s), the main technical field of the patent (here called the 'subject' of the patent), and the primary objectives of the invention. This is followed by a summary description of the nature of each patent. 2 o

^ S

*I

-Q

ft

-0

hd

^

ft

^

Crq

2 0

ft 3 n

c o

ft

1154

1873

B&W

2645

1880

B,W,P

Y Y

1* Y 1* Y

3066

1880

B,W,P

Y

2

5232

181

Bennett Y

2

5289

1881

Wise

Y

Y

2

3

K,Th

1* Y

Y

13041 1884

K

Y

3

Y

Y

Fair 2

Y

2

Y

B

1885

K,Th

3979

1885

B+Pine Y

Fair 3

4133

1885

B

Fair 2

Y

4134

1885

P

Y Y

Fair 2

Y

10821 1885

Hazle

Y

Fair 3

14999 1885

K

15639 1885

K

1886

Y

3039

1886

Y

Fair 2

5887

1886

Y

Fair 1*

6906

1886

6961

1886

7747

1886

12108 1886 3059

1887

7622

1887

8228

1887

K K K K ? K K

Y

Y

2 1* Y

3038

Fair 1*

2 2 3

Y Y Y

1* Y

Y

3

r^

U

Y

K

1885

0

Y Y Y

12189 1884 1836

ft

Y

10646 1884

2811

»~S

nspo

*

o

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ength gine

;> a3 r
1) in the most modern sectors (Energy and water, Metals, Chemicals, Machinery, Electric and electronic materials, Transport equipment, and Transport and communications), while Spanish residents had technological disadvantages in all those sectors. They only reached technological advantage in the more traditional ones.

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International Patenting in Spain Before the Civil War THE TECHNOLOGICAL LEVEL OF PATENTS AND COUNTRIES

As we have just explained, the orientation of patented technology towards modern sectors or towards more traditional ones gives an idea of the technological level of countries. Nevertheless, this idea might be explored in more detail, because in the same sector we can use inventions of very high or very low technical complexity. Even the more traditional sectors, such as Agriculture, can use very simple inventions - shears - or very complex ones - a computer-controlled irrigation system. If all patents used in Agriculture were of the latter type, would we have to conclude that it is a high-technology sector? The same sector can be defined as of high or low technology depending on if we look at the technology it uses or at the ones that it produces. The use of high-technology inventions - for example, a tractor for agriculture - sometimes requires very basic training, because most of the engineers' efforts when they design a new invention are directed to facilitate its use to people who do not even know how to read the instructions. This example is useful to explain why the best way to measure the technological level of a company or sector is to evaluate the technical complexity of its products - or the technology it generates - and not of the machines it uses. So the answer to the question of the last paragraph is negative: Agriculture - at least for the period studied here - is a low technology sector, because the products it 'makes' have the lowest technological complexity and, at the same time, the technology agriculture can generate - crop rotation, for example - may be considered - in general - to have the least technical complexity. All in all, we have to consider that the agrarian sector, as any other, requires a know-how - a knowledge - that is to be acquired by studying or through experience. We can even have the case in which a concrete crop or the attainment of a specific level of productivity will need such a high technical or scientific knowledge that we would have to consider that activity to be of high technology. The determination of the technological complexity of sectors is not so easy, because it depends on the criteria adopted and because it is difficult to generalize: in a specific sector there are probably as many levels of technical complexity as products. We can even distinguish for a single product, companies of high and low technological level, depending on the machines or techniques employed. However, even though running the risk of being too simple, we have made an evaluation of the technical complexity of the patents registered in Spain between 1882 and 1935. This has allowed us to estimate the grade of complexity or the technological level of different sectors, companies and countries that patented in Spain. For this analysis we have assigned each patent a grade of technical complexity, in such a way that grouping together those applied for by a company, a sector or a country we can obtain a measure of its average technological level.39 Six grades of technological levels have been established: Very low (value 1), Low (2), Medium (3), Medium-high (4), High (5), and Very high (6). In order to assign to each type of technology some of these levels, we have been inspired by M. Buesa, who established a level of technological History of Technology, Volume Twenty-four, 2002

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complexity for each one of the industrial branches in which were classified the patents granted in Spain between 1967 and 1986.40 Nevertheless, we have introduced some modifications, because our classification is more detailed, and because we have focused on an earlier period. This second reason has not really introduced great modifications in Buesa's classification, because it has been supposed that, grosso modo, the relative technological level of all sectors in 1882 and in 1967 is almost the same. In other words, those sectors that in 1882 were of high technology - such as electric communication technologies - or of low technology - food industries - still have today the same consideration, with the difference that the technological frontier has moved forward enormously. Nevertheless, this classification is approximate and subject to debate and alteration. It is certain that historians of technology, analysing patent by patent - which I have not done for this classification - will be able to significantly improve it.41 Before calculating the technological level of sectors and countries, it would be good to know the distribution of patent applications in Spain between 1882 and 1935 from the point of view of their technical complexity level. In Table 8 we can see that most of the patents were of mediumhigh, high or very high technical complexity - 65 per cent in all - so the lower-level categories amounted to 35 per cent. This proportion was not constant in time, but suffered significant variations. It is worth noting that 1882 was the year with most patents in those categories of a greater technical complexity: 70.1 per cent. This fact might be analysed in terms of several factors, but two do stand out. The first is connected with the fact that Spanish residents were the ones who applied for most patents throughout time, but at the same time they had a small number of patents belonging to those categories. That is to say, they had a great negative influence in the high-technology patents participation in the total number. But in 1882 they obtained only 31 per cent of all patents, and this was also the year in which they reached the greatest proportion of high-complexity patents: 63.2 per cent.42 Therefore, though in 1882 they were also under the average number, the negative effect of Spanish patents in the total proportion of high-technology patents was considerably attenuated with time. The second factor is related to the large number of UK and US patents in those categories, that reached a very high proportion in 1882: 85.4 and 84.8 per cent, respectively. In that year the USA reached its highest participation in the total number of patent applications in Spain (14.7 per cent), and the UK almost equalled its historical maximum. If we go into detail, we can check that 40 per cent of 1882 US patents belonged to the very high technological complexity category, being ahead of any other country. The reason for this situation is the outstanding number of patents registered during that year by some of the USA's greatest inventors: Thomas A. Edison,43 Hiram S. Maxim44 and Edward Weston.45 If we look at the following years, we can say in general terms that there was a decline of high-technology patents until 1897. From the beginning of the twentieth century the tendency was inverted, and in 1935 medium-high, History of Technology, Volume Twenty-four, 2002

^

£

§

I5

i

bo

Table 8 Distribution of patent applications in Spain depending on their technological complexity grade, 1882-1935 1922 1907 1935 1917 1897 Total 1887 1882 % n. Pat % n. Pat % n. Pat % n. Pat % n. Pat Complexity n. Pat % n. Pat % n. Pat 1. Very low 2. Low 3. Medium (1+2+3) 4. Medium-high 5. High 6. Very high (4+5+6) Total patents* Others** Total

%

111 4.1 3.3 74 97 4.0 77 113 3.3 44 46 4.0 3.6 562 3.2 5.2 590 17.6 351 19.4 444 18.1 459 19.8 463 13.2 2,569 16.6 97 11.4 165 14.3 455 13.6 290 16.0 317 12.9 371 16.0 549 15.6 2.282 14.8 113 13.3 187 16.2 715 39.5 858 35.0 907 39.2 1,156 34.5 1,125 32.1 5,413 35.1 254 29.9 398 34.5 715 21.4 401 22.2 571 23.3 487 21.1 789 22.5 3,497 22.7 213 25.1 321 27.8 840 25.1 492 27.2 676 27.6 524 22.7 768 21.9 3,826 24.8 235 27.7 291 25.2 636 19.0 200 11.1 346 14.1 395 17.1 826 23.5 2,694 17.5 147 17.3 144 12.5 595 70.1 756 65.5 1,093 60.5 1,593 65.0 1,406 60.8 2,191 65.5 2,383 67.9 10,017 64.9 849 100.0 1,154 100.0 1,808 100.0 2,451 100.0 2,313 100.0 3,347 100.0 3,508 100.0 15,430 100.0 1.4 264 11 0.6 83 3.3 49 0.4 66 1.9 50 3 2.1 1.7 2 0.2 2,534 15,694 3,413 1,819 3,558 1,156 2,362 852

Sources: BOPI and Patent Record Books of the Spanish Patent Office. *Of known object. ** Of unknown object.

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