Patents in Europe before the First World War

To this day, a shared European patent does not exist. A “European Patent Office” certainly does, although this institution simply centralizes the issuing of national patents, whose validity is strictly national, in each of the member states targeted by the applicant. The patent issued in this way is not unitary: it is not automatically valid in all countries in Europe, and can be the subject of disputes in as many jurisdictions as are involved. This assessment is striking given the high level of economic integration as well as the importance of industrial property in today’s Europe. In trying to understand why there is still no genuine “European patent,” we must analyze the national roots of these legal instruments for appropriating technical innovations.

Paris Convention for the Protection of Industrial Property (1883). Source : gallica.bnf.fr
Summary

Patents before the globalization of national economies

The first two major countries that passed patent laws were England and France. In England, the Statute of Monopolies of 1624 gave the king the right to grant an individual a patent, which is to say a title of exclusive ownership. In eighteenth-century France, there was a consensus that each new idea belonged by nature to the person who formulated it. There was subsequently no reason for the king or any other public authority to examine a request to grant a patent. Registration with the competent authority was sufficient. In England, the king could refuse to grant this title, for given that all ideas are naturally born within a social context, it could sometimes be difficult, if not impossible, to individualize its ownership.

“Patent granted” or “natural right to a patent”: the alternative was present in most European countries. Even after the major French legislative reform of 1844, there was no obligation to demonstrate that the patented idea worked. Both Italy and Spain followed the French example, as the only requirement was to inform public authorities such that the patent was registered. In the Netherlands, the law that took effect in 1817 was similar, until its repeal in 1869. In Austria and Russia, patent holders were required to demonstrate the novelty of the idea, including the fact that it did indeed come from them. Germanic countries did not have uniform laws. Switzerland had no law, at least until 1887. The total absence of protection through patents was a third option.

Patents are actually not self-evident. The primary argument against patents is economic in nature, insofar as this provision amounts to the creation of an artificial monopoly. Yet liberal theory, which was gaining more and more supporters, is strongly averse to monopolies of any kind, even temporary ones such as patents. Until the 1860s, the idea that what was most important was to strengthen and stabilize free trade garnered international consensus. Protecting global trade took precedence over protecting innovators. For Prussia in particular, this was the primary argument for rejecting calls for national patent laws. Convinced that each country participating in the global market benefited from it, Prussia and other states did not want to endanger economic progress. At the time of the Cobden-Chevalier Treaty on free trade (1860), protecting inventors from espionage and the theft of ideas was quite present in the minds of contemporaries, but granting an artificial monopoly struck many as too high a price to pay. On the occasion of a trade agreement between the two countries, France pushed Switzerland to enact patent laws, but dropped its demand fairly quickly.  Perceptions of the cost/benefit analysis changed during the 1870s.

Economic crisis, globalization, and the second economic revolution

A first sign of change came with the organization of a conference on the subject in Vienna in 1873, alongside the International Exposition. During these events, the Americans pushed for greater protection for their innovations, although the interests of a single country were not enough to change things. At the same time, in the year 1873, the outbreak of an international economic crisis showed participants of global commerce that free trade could cause great damage. The arguments of Friedrich List and economists critical of liberalism were more audible and popular, justifying various measures of protection for national economies, including the creation of a patent system to protect burgeoning industries. The central argument against patents—the limitation of economic free trade in the form of an artificial monopoly—lost a great deal of its force.

The second economic revolution, which is to say the growth of a new knowledge economy in which research and development are key factors in the success of companies and economies, went in the same direction. This revolution took place in a number of industrialized countries, especially in Europe. In the decades preceding the First World War, the number of patents filed rose sharply. Despite the protectionist customs policies implemented from the 1870s onward, international trade continued to grow, and did so even faster than industrial production. Put another way, globalization accelerated. In this context, the question of protecting innovation and ideas from theft and counterfeiting was thrust into the heart of discussions, without being limited to the specific context of international exhibitions. Even countries reluctant to legislate made the shift. The clearest example is certainly Germany, which passed a law in 1877.

The question of international coordination, which had barely been raised previously, became a pressing issue. The Vienna Congress of 1873 marked the beginning of a decade of intense discussions seeking to harmonize and simplify the processes for effective international protection of innovators. The differences between the systems in effect obviously complicated negotiations. It was not until 1883 that eleven countries (Belgium, Brazil, Spain, France, Guatemala, Italy, the Netherlands, Portugal, El Salvador, Serbia, and Switzerland) signed an international treaty on this subject. For all that, the situation was not always clear and stable. Some of the first signatories, such as Switzerland and the Netherlands, did not (yet) have national laws; others that were more reluctant decided to withdraw, such as El Salvador, Guatemala (1886), and Ecuador (1894). However, moving in the opposite direction, the United Kingdom (1884), United States (1887), Japan (1899), Germany (1903), and Austria (1909) joined and strengthened the “Paris Convention for the Protection of Industrial Property.” Twice revised before the First World War (in 1900 in Brussels and 1911 in Washington), it remains today the fundamental framework of protection for industrial property on the international scale.

Why does a European patent not exist? It is not impossible, although finding a single legal solution valid in all participating countries has historically proven more difficult than coordinating national legislation through a relatively flexible international agreement.

Translated by Arby Gharibian

To quote from this article

Yaman Kouli, « Patents in Europe before the First World War », Encyclopédie pour une histoire numérique de l'Europe [online], ISSN 2677-6588, published on 22/06/20, consulted on 26/11/2020. Permalink : https://ehne.fr/en/node/12208

Bibliography

Galvez-Behar, Gabriel, La République des inventeurs. Propriété et organisation de l’innovation en France (1791-1922) (Rennes: PUR, 2008).

Griset, Pascal, Laborie, Léonard, “Entre mondialisation et intégration européenne : origines et signature de la Convention sur le brevet européen (Munich 1973),” Bulletin de l’Institut Pierre Renouvin 44 (2016): 55-74 (available online: https://www.cairn.info/revue-bulletin-de-l-institut-pierre-renouvin-2016-2-page-55.htm).

Griset, Pascal, The European Patent. A European Success Story for Innovation (Munich: European Patent Office, 2013).

Otto, Martin, Diethelm, Klippel, eds., Geschichte des deutschen Patentrechts (Tübingen: Mohr Siebeck, 2015).

Seckelmann, Margrit, “From the Paris Convention (1883) to the TRIPS Agreement (1994): the history of the international patent agreements as a history of propertisation?”, Jahrbuch der Juristischen Zeitgeschichte 14 (2013): 38-60.

/sites/default/files/styles/opengraph/public/brevets.jpg?itok=sx8ZLK09