[Patents] DE 1873: conservative patenting approach

[phm@a2e.de (PILCH Hartmut)]

> I wrote a short summary of one good article about this subject on
>
>       http://swpat.ffii.org/vreji/papri/boch97-gispen-de/
>
> The article is in German, written by Kenneth Gispen, an American scholar
> specialising on the history of the patent system in Germany.
>
> My summary is also in German, and it doesn't tell you any more than what I
> wrote below.

Except maybe one more point:  The main characterstics of this
"conservative patenting" approach were:

- very high patent fees
- no mention of an inventor, only of an applicant

Werner Siemens explained in several responses to critical economists that
the patent system was meant to be a means of regulating competition
between companies and that any cultivation of myths about the individual
inventor should be avoided, as they have nothing to do with the economic
rationale of introducing this system.  He also stressed that the main
benefit of the system consists in spreading important technical
information earlier than would be likely if one were to rely on business
secrets.

All these arguments were not taken very seriously for a while. The
economists pointed out that ideas would be disclosed sooner or later and
that people would usually only patent those ideas, which they expect to be
disclosed anyway.  They also pointed to the losses generated by
monopolies.  On one major congress of economists in the 1860s there was an
almost unanimous resolution saying that patents block competition and
stifle innovation.  This received the warm support of Otto v. Bismarck
who also spoke about this issue.

However, in 1871 the new nation state (2nd empire) was founded, and it
needed some symbols of its importance.  Moreover there was an economic
recession and a wave of criticism against the "liberal ideology" of the
economists.  These two waves allowed the patent system to be introduced in
1873, together with a couple of protectionist laws on import tariffs.

> You may find more about this in other writings of Gispen as well as in
> Machlup's great report to the American Congress, written in 1958.
>
> There are some more fascinating historical details about this.  Gispen
> writes that the "conservative patenting approach" taken in Germany after
> 1873 was rather favorable to the enormous economic growth that Germany
> experience in the ensuing decades.  On the other hand, it created a great
> dissatisfaction among lawyers and small inventors, who joined together to
> form a second "patent movement", also called "inventor romanticism", whose
> aim it was to popularise "intellectual property" and to let the small man
> participate in what seemed like a privilege of the big enterprises.
> This "inventor romanticism" was taken up by some parts of the German
> Social Democratic Party, but, more importantly, by Hitler and his National
> Socialist Party.  There are even a few excerpts in "Mein Kampf" that
> stress the importance of popularising the patent system and of supporting
> the small inventor as a kind of avanguarde of the nation to be put under
> special organisational tutele of the Party.  In 1934-5 there was then a
> struggle between the "conservative patenting" approach, which was still
> favored by the big industry, and the "inventor romanticism" approach
> favored by NSDAP activists.  The latter prevailed, and the mass-organised
> inventor romanticism was actually used as a tool for promoting military
> production under Albert Speer, who was a kind of organisational genius and
> well respected in the world even after the war, due to his honest stance
> at the Nuremberg trials, where he was handed a 20 years sentence.
>
> In the 1950s, the large industry corporations again advocated a return to
> "conservative patenting", but the other side successfully argued that
> "inventor romanticism" was a cause in its own right and shouldn't be
> discredited because of its accidental historical ties to the NS regime.
> The result was the "employee invention law"
> (Arbeitnehmer-Erfinder-Gesetz), which is still a german specialty.  It is
> the law on which a recent new drive to oblige professors to submit all
> their ideas to a to-be-built university patent department is built.  The
> ArbEG stipulates that each employee inventor must receive 30% of the
> benefits that the employer reaps from the patent.  This is in fact a
> source of popularity of the patent system in Germany, but it also has dark
> sides:
>
> - the employee is often cheated (the employer says "good idea but should
>   rather be kept secret than patented" and then two months later patents
>   it under a different name, in order to avoid having to pay the 30%)
> - the relationship between employer and employee becomes antagonistic.
>   Employees try to privately patent things that the company really needs
>   to keep secret
> - world companies avoid placing their R&D centers in Germany
>
> The darkest side is of course the current German law proposal, which
> attempts to turn universities into patent factories and professors into
> dependent patent production workers.  So far they did not fall under ArbEG
> but were free to use their knowledge as they pleased.  More about this on
>
>       http://swpat.ffii.org/cnino/
>
> It looks like there is a very strong lobby pushing this.
> And from the historical development, you can see the path of patent
> inflation, coming about in several dialectic turns.
>
> > On Fri, May 04, 2001 at 12:16:37PM +0200, PILCH Hartmut wrote:
> > > > > >From who's pockets?
> > > > >
> > > > > Patent applicants should pay more to get patents.  That's whose 
> > > > > pockets.
> > > >
> > > > So only rich people (read, companies) deserve to get patents ?
> > > >
> > > > Great idea!
> > >
> > > In fact this is not all that bad an idea.
> > > It was one of the restrictions imposed on the patent system when it was
> > > introduced in Germany in 1873.
> > > A patent cost a horrendous sum, I think it was 15000 Reichsmark, but I 
> > > may
> > > be wrong.
> > > This was advocated by Werner von Siemens, president of the Patent
> > > Protection Assiciation (Patentschutzverein), the pressure group that
> > > helped overcome the resistance of the economists in the 1860s and 70s.
> > > They told the economists that this high price was to make sure that
> > > patents were only granted in areas where largescale industrial property
> > > was at stake, and they were a means of better regulating competition
> > > between large enterprises, and by no means designed as a system for
> > > personal "intellectual property", a term which even people like Siemens
> > > considered nonsense and dangerous.
> > >
> > > Of course this compromise between patent lobbyists and economists 
> > > implied
> > > that there can be no software patents, simply because software does not
> > > necessarily imply an expensive industrial apparatus.
> > >
> > > It is hardly worth noting in that context that we just stumbled across
> > > another of the many inconsistencies in Greg's proposals.
> > >
> > > -phm
> > >
> > >
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