The following is a computer-generated transcript from the Patently Strategic Podcast. The results aren't always perfect, but we will continue working on improving the quality of the automation.
00:00 Good day, and welcome to the Patently Strategic Podcast, where we discuss all things at the intersection of business, technology, and patents. This podcast is a monthly discussion amongst experts in the field of patenting. It is for inventors, founders, and IP professionals alike, established or aspiring. And in this month's special pre Independence Day episode, we're talking about why patents exist. 00:24 And we're doing so with the help of distinguished guest and friend of the podcast, Professor Adam Mossoff. There's a special kind of magic that happens when individual incentives align with societal good. Abraham Lincoln, who believed that the creation of the patent system was only surpassed by the discovery of America and the invention of the printing press. 00:41 In terms of the three greatest advancements in human history, once, said the patent system added the fuel of interest to the fire of genius. The recognition and protection of mental labor in the fruits of the mind as natural property rights enabled any inventor, big or small, to profit from their discoveries and partner with those possessing the resources necessary to scale and bring new products and services to the marketplace. The exchange of this protection for an enabling public disclosure enhanced society and accelerated the pace of innovation by facilitating the open exchange of information and created the greatest free library of science and technological information in the world. 01:21 And because the economy grows and society flourishes when innovation is encouraged, society was transformed in the 19th and 20th centuries, as demonstrated by the scientific and technological revolutions that define our modern society, and by virtue created the greatest hockey stick graph in history. But somewhere along the way, we lost sight of this. Patents became a victim of their own success, their impact on society, the economy and innovation became both ubiquitous and too often unseen at the same time. 01:51 To help in doing our part in starting to undo this collective societal amnesia about the significance of patents, we're going to zoom way out, turn the dial back just a bit, and focus on why patents exist in the first place and why they still matter now more than ever. We start this episode by looking at the evolution of the idea with a brief history of patents, from their conceptual origins in ancient Greece, all the way up through the prerevolutionary English system and the origin of the word patent itself. We then heavily focus on the history of the US. 02:21 Patent system, its democratization of invention, and its significant break from its predecessors, championed and breathed into existence by the collective wisdom of the likes of George Washington, James Madison, and Thomas Jefferson. We examine the prominent role patents played in the Federalist Papers, the Constitution, the first ever State of the Union address, and as the third ever act of the first Congress, and how loudly this signals the undeniably inextricable link between the Founders notions of the core principles of democracy and the societal good that comes from innovation and intellectual property protection. We look at how these differences played out internationally across the industrial, chemical, pharma, biotech, computer, and mobile revolutions, and we do so through the lens of the most controversial and fundamental question in the patent debate, which is whether patents promote innovation or hold it back. 03:11 We bring it all to the present by discussing how the fundamental virtues that made the US. System unique and proved successful over its history have now tragically become the primary attack vectors used by its opponents. We're still very fortunate to be doing so with the help of Adam Mossov. 03:26 You might remember Adam from his involvement and exceptional insights shared in our Patent Wars episode earlier this season, as we'll get into much more shortly. If you cared all about patents early US history with the impact that private property rights have had on innovation and economic prosperity, then you're in for a treat. We couldn't ask for a better historical tour guide or contemporary ambassador for this very important topic. 03:48 Adam is a wellspring of knowledge in this domain and makes the history come to life and connects it with modern times in ways I could only wish all of my history professors had. This is someone who absolutely lives and breathes the past, present, and future of patent law. For those less familiar, Adam is a professor of law at Antonin Scalia Law School at George Mason, where he teaches a wide range of courses, including property patent law, trade secrets, trademark law, remedies, and Internet law. 04:14 Adam is an expert on patent law and innovation policy. He's been invited five times to testify before Congress on legislation addressing patent law and innovation policy, and his research has been relied upon by the Supreme Court, the Court of Appeals for the Federal Circuit, and by federal agencies. His writings on IP law have also appeared in the Wall Street Journal, Forbes and the New York Times. 04:36 You can follow Adam on Twitter at adam Mossoff, where he posts regularly on patent and innovation policy, including his always informative on this Date in Innovation History tweets. If you can't tell, we're big fans of Adam's and think this episode makes for a great time. To share that, we're introducing a new regular podcast segment to help keep you informed on the significant events in the patent world. 04:56 Particularly those events that pertain to the battle that rages on between the ragtag group of rebels fighting to restore our patent system to its former gold standard against the all too powerful forces spending billions to destroy the ladder they once climbed up. On this segment that we're calling the Moss Off Minute will build on our Patent Wars episode and features short conversations with Adam, providing updates and quick takes on movements in patent reform, significant court rulings, innovation policy happenings, and occasional Star Wars references. For our first installment, Adam briefly reacts to both the recent Amgen decision as well as the EU's proposed regulatory regime for standard essential patent licensing. 05:33 Here's Adam now with the first ever Mossov minute. The big news in the biopharmaceutical space and patent law was the Supreme Court's decision in Amgen v. Sanofi this past spring. 05:46 There was a real concern, a legitimate concern, that the Supreme Court was going to throw out a long standing practice of innovators to use a type of claim in their patents to claim their invention that is referred to as a genus claim. It's a very broad claim. It's a type of claim that has always existed. 06:10 Samuel Morse's patent, even the parts of it that were upheld by the Supreme Court were genus claims. So the Wright brothers was a genus claim. This is a key part of a patent document to drive innovation. 06:22 It's been a key part of the way in which the United States has been a leader, an innovator itself in patent law, in providing inventors and innovators the ability to receive secure and reliable protection for their property rights and their new inventions. And the Court was essentially being asked to overthrow these claims, to throw them out of pat law. In fact, the attorney for Sanofi explicitly said that during oral argument that genus claims should be thrown out. 06:56 Thankfully, and luckily, the Supreme Court did not do that. It did not say that genus claims are inherently invalid or suspect or anything of that sort. Unfortunately, it did side with Sanofi in this case in limiting and restricting Amgen's patent. 07:17 In this case, on it, it's the biotech patent. But thankfully, it essentially reiterated, I think, what was long standing law. It talked about the Morris case and Alexander Graham Bell's invention and the case that arose out of that. 07:35 And I think it essentially reiterated that the Court should continue to follow existing practice when it comes to both claiming and with respect to enablement and written description requirements, which was specifically what the case was about. But at the end of the day, it really addressed the way in which innovators could obtain full protection for their inventions. It would have been helpful if they had sided with Amgen. 07:58 It would have been a much clearer signal to innovators. But given that they were being asked to throw out genus claims, and given the tenor of the US. Supreme Court's patent law decisions over the past ten or 15 years in which they have been rolling back patent rights, eliminating and narrowing the scope of patent protections provided to innovators in the United States. 08:22 The decision actually was somewhat of a welcome relief of at least the Court stepping back from that precipice that it usually is more than willing to jump off of in past decisions. The other big news in the global innovation economy was the surprise leak of a proposed draft regulation that the European Commission in the European Union, the EU is considering, in which it would impose, will create, and then impose. This massive regulatory regime to be imposed upon the licensing and litigation of patents that cover standardized technologies like WiFi and things of this sort. 09:13 The concern about this regulatory regime is that it would impose essentially price caps on licensing activities. It would use patent counting for essentially determining what should be your licensing royalties and impose many other costs and hurdles on innovators to both license and ultimately necessarily litigate against infringers their patents that cover standardized technologies. These are called standard essential patents in patent law wonkish terminology. 09:49 And this is a real concern because the issues have been litigated in courts and the courts have been developing in Europe and elsewhere a fairly robust set of laws and have been developing the evidentiary rules for what counts as legitimate licensing. This is exactly what you would expect in evidence based policy making. It's ground up it's courts receiving evidence, hearing arguments and then ruling on the basis of the law. 10:20 Given the evidence presented in this instance, then the implementers of these technologies who were heaven unhappy with the court rulings, decided to go to the regulators and legislators in the EU to make arguments that are largely rhetoric based about so called patent hold up and ambush and monopoly pricing by patent owners. And while the policymakers and legislators may not have any ill will or bad intent, they're not constrained by rules of evidence and due process the way courts are. And there so they're more susceptible to being unfortunately misled by that type of rhetoric. 11:04 And this is what has happened in this case. It's very significant. It could potentially impact the very foundations of our kind of modern high tech global innovation economy, especially the mobile revolution, because these are patents that cover five G and things of that sort. 11:20 And moreover, it's going to be abused and exploited by China. China will then point to this and say see you're doing this and we can do this too. They have been abusing their patent system and their antitrust laws to benefit their own domestic companies like Huawei and HTC. 11:37 And they will exploit these types of developments in Europe and if it occurs in the United States as well, to their own advantage, continuing their own abuse of their laws for their own domestic industrial policy purposes, on top of the continuing theft of innovation from the west as well. We'll be including the audio from these updates in each monthly episode. But in an effort to reach an even wider audience, we're also going to be trying our hand at publishing these and other great interviews and explainers as short form videos on Instagram reels, YouTube shorts and even TikTok. 12:12 Well, at least that is until the Chinese government bans us for speaking openly about IP theft and the fate of a technological future defined by an authoritarian regime actively engaged in human rights violations. But I digress. You can check out these shorts and follow us at aurora patents on all three platforms and be on the lookout next month for some great analysis on the recently reintroduced Patent Eligibility Restoration Act and the newly introduced Prevail Act. 12:35 Now, without further ado, here's our conversation on why patents exist with Adam Mossoff. All right, well, thanks for joining us today, Adam. It's good to be here. 12:45 Josh, in one of the interviews that we did with you for the patent reform episode, you also said something then that made me realize that you're a pretty good person to talk to about all of this. Beyond the extensive work that you do currently in modern patent law and innovation policy, you got started in this world with a really massive deep dive around its history. Could you tell us about your academic research into the primary source materials and what your motivation launching for doing that was, yes, I've always loved history. 13:24 And in fact, I was doing a lot of study of a very specific, actually, area of history even before I went to law school called intellectual history. And in my formal studies in philosophy I was actually doing a lot of research and kind of historical development and evolution of natural law philosophy starting with the presocratics in ancient Greece thousands of years ago kind of tracing its evolution and development up to the Romans and Cicero and up through, then Quinas and the high Middle Ages and the Renaissance and then its evolution into natural rights theory in the 17th and 18th centuries. And so it always been very interested in history and delving into kind of primary historical documents and records to trace intellectual development and the evolution of ideas. 14:22 And so when I became interested in the history of patents, it was just very natural for me to kind of take that skill set that I'd already developed in graduate school and transfer it over to my study of patents. I was actually kind of prompted, really to start the study of history in patent law largely, I think, as a result of two things. One is, broadly speaking, our common law system, we rely very much on history as just a matter of legal argumentation. 14:58 Appealing to historical sources is the default rule, so to speak, for what lawyers do. In Anglo American legal practice, it's the only time where it's entirely acceptable to say, well, they were doing it before, so it's okay to keep doing it now. The very thing that we tell our kids they're not allowed to say is a totally acceptable argument to a judge and then closely related to that first point. 15:33 The second point is then is that when I first started doing my work as a legal academic, I was starting from the perspective that patents are property rights. And I was receiving a lot of pushback, especially from legal academics. So this was back in the late 1990s and early aughts, and they were telling me, oh, this whole idea of intellectual property as property is a modern idea. 16:01 This is new. So you're the radical item. You have to justify why treating intellectual property as property needs to be done. 16:09 And I would always say to them, Why is it new? And they kept saying, well, because Thomas Jefferson said that patents are on property. I became really interested in the history through those exchanges because I noticed that people like Mark Lemley and Larry Lessig and many other prominent professors were kept referencing the same one or two sources, the most prominent one being Thomas Jefferson. This letter he wrote in 1811 to an inventor. 16:42 And so I said, well, this is all really interesting. Let me look at the historical record. And given my background and my training, I said, I'm going to go look at the original historical sources. 16:54 So I'm going to go read all the patent decisions in the 19th century, and I'm going to read all the original treatises, and I'm going to read the articles in court opinions, even from the 18th century earlier. And what I found through doing this historical research and kind of tracing the evolution of the development of the way people have been thinking about patents is that actually these claims that patents were originally viewed as monopolies, at least in the American context, were not correct. And this, of course, leads to one of my more famous articles, which is actually titled, who Cares What Thomas Jefferson Thought About Patents? Covering the patent privilege in historical context. 17:35 So it's kind of those two factors, the general reliance on history, which explains why the intellectual property professors were citing to Thomas Jefferson and others, because they were just following this kind of classic norm of citing to historical sources. Of course, they're engaging in what legal historians refer to as law office history, which is not the true use of history, but the lawyer's use of history, where you selectively find any particular historical source or case that happens to support a preconceived policy position you have. In this instance, they thought patents were monopolies, and so they were just looking for sources to support them in historical record, where I actually was like, I don't know what I'm going to find. 18:18 When I started my historical research, I thought maybe Thomas Jefferson was his views did reflect the dominant view at the time. That's one of the really fun, cool things about doing historical research. It's a bit like mining. 18:32 I sometimes refer to being in the law mines. You never know what you're going to find when you start digging and reading the original sources. You have to keep an open mind about it. 18:40 You have kind of a supposition or a theory that tells you what you think you might find, but you have to be really be honest and remain committed to what the actual factual sources are actually telling you as you're reading them. It's a lot of fun. There's another whole new layer to it, too, which is the intellectual context of the earlier period is often very different from what we're reading. 19:02 What you know now, one historian referred to doing historical research as a bit like visiting a foreign country, which makes it very dangerous, especially because you're reading text in English, but words don't even necessarily have the same meaning. In fact, that was my article. Who cares what Thomas Jefferson thought about Patents? The subtitle is rediscovering the patent privilege in historical context. 19:27 Because what I found was that people were finding the word privilege in the historical record and were reading it out of context, imposing kind of a modern interpretation or sense on that term as opposed to the actual meaning of that as a legal term of art within this kind of broader kind of natural rights defined theory of civil rights and natural rights in the 18th century and 19th centuries as defined in our Constitution. As represented in our constitution, in the privileges or immediates clause in article four, and in privileges and immediate clause in the 14th amendment. So this next question, I kind of want to tarantino this a bit and kind of work back from the ending. 20:10 You mentioned private property rights. And we're going to come back to that for sure because I don't think it could be any more important to this conversation. But I do want to go back in time first for some context and hopefully give listeners kind of a Cliff Notes like origin story on the history of patents. 20:29 And while I do know that this sounds like the sort of question that could be a remedy for people with insomnia, I do think it's a really important concept, because the concept of a patent hasn't always meant the same thing, it hasn't always had the same motivations, and it certainly hasn't always had the same the same outcomes. Right. Patents didn't start in the US. 20:52 Or even in England, did they? Right. Well, I mean, the term patent even comes from England's letters patent open. This legal device that is used was by the Crown and which actually the United States still has as the way to start property rights. 21:12 All even property rights and land start with an originally a patent grant from the government, because it's the way you kind of start the legal protection of something. If you step back even more from the framing of patents, the recognition that you can incentivize people with an exclusive grant. You know, regionally, a monopoly type protection goes all the way back to ancient Greece, where individuals would petition the various city state governments for various monopoly protections as a way to incentivize and or justify I spent all this time creating this, please give me protection in it. 22:05 And that will ensure I have a reward for the benefit that I'll give to everyone as a result of having created it. And so that's what you had in ancient Greece and then Venice is the first country or country, city, state, that in the Middle Ages, the high Middle Ages at the right of turn of the Renaissance that really kind of institutionalizes this practice. So it's no longer like a one off petition by a particular individual. 22:37 They actually enact a statute that provides for various exclusive rights to people who kind of create new novel technologies. For those who know about the Renaissance a little bit, you'll know that a lot of our early technologies were coming out of Italy. Italy was kind of the fountain head of the Renaissance in art and machinery, leonard DA Vinci, our Renaissance man, still to this very day. 23:06 He did everything painting machine, concepts of modern tanks and helicopters and everything. Early Silicon Valley? Yes. Or early US. 23:22 Massachusetts. Boston was the first. Really? Silicon Valley. 23:27 United States was the Massachusetts Boston area. So they create a statute where they set forth various statutory conditions, or if you really have created something new and you get a set period of time if you meet these requirements. Those are very often identified as the first patents because they kind of reflect various features that we do now have, although they were still very different from what we have now. 23:53 But they reflect various key features, one of them being that they were institutionalized, meaning they were set forth in a law, that the law set forth various requirements to apply to inventors. It provided for an exclusive term, and it had to be something that was new. That is often identified as pretty much the very first patent system that you might be able to identify as a patent system, although that's speaking still a patents in a very generalized, abstract sense, because what the United States eventually has as patents is still vastly different from what you even had in Venice or even in England after that. 24:43 And then I guess the next big step, since this is just supposed to be the Cliff Notes version, of course, is then the development in England, where the English crown was very interested, as it just does a matter of economic policy, of kind of promoting the economic development of the realm at that time. England was more of a backwater type country than the rest of the continent in the 15th and 16th centuries. And so the crown uses its royal prerogative to issue letters, patent open letters. 25:20 This is law French. So just patent means open. And following French, they put the adjective after the noun. 25:27 So it's really an open letter in standard English and to entice people from the continent to comments, start practicing new manufacturers and other technological skills in the realm. And so the English crown says if you come to England and start in England, a new practice. And they're referred to as inventors at that time because an inventor just meant new to the realm in English at that time, didn't mean new to the world, just meant new to the realm. 26:03 So it could be something that you've been well known and already being practiced in Europe, meaning the continent. But just as long as you come to England, we'll give you a 14 year period of monopoly where you have this protection from the Crown, where if anyone starts to compete with you, you can actually go to the Privy Council, which is the Crown's Court, and have it get an order for them to stop. And of course, an order from the Crown is a pretty serious deal. 26:35 Right. So if you violate that, you get thrown in the Tower of London and worse things happen to you after that, potentially. So this carried a lot of force. 26:46 And of course, letters Payton were used not just for enticing manufacturers. I mean, as I said, this was kind of the standardized legal mechanism by which the Crown exercises prerogative. So this was how the Crown also granted franchise grants to create markets, local markets, which had to have the authority of the Crown to exist. 27:05 And then they were monopolies. So when Crown created a market, you couldn't create a competing market. They can use this to create bridges, to incentivize people to create bridges, and also inns and highways and all sorts of other things that kind of affected the economic development of the realm at large. 27:25 And of course, the Crown, this being an exercise of the prerogative as kings and queens are won't to do, at least in old of yesteryear, they tend to use unrestricted, unrestrained powers. I know we're all shocked to hear that. That's the breaking news to come out of this one. 27:46 Yes, exactly. I'm like, oh my God. Instead of granting these grants to people who were bringing new manufacturers over to England, queen Elizabeth starts to give them to court favorites. 28:08 And some of the more kind of infamous ones were playing card monopolies, where they've been playing cards for a very long time. And she grants one to a man called Darcy, who is just a court favorite. And of course, he then starts to shut down other people making playing cards. 28:27 This leads to and becomes part and parcel of the constitutional conflicts, actually. So patents played a very key part of what were wide ranging constitutional conflicts in the 17th century. England in the 17th century is a period rife with conflict, where they are defining and slowly imposing limits on the Crown. 28:49 And this is kind of pre natural rights revolution. So they're largely fighting over what was then defined as the traditional rights of Englishmen. And at that time, the traditional rights of Englishmen were defined. 29:00 You could practice your trade, you had a traditional right of it being Englishman, you could practice your trade. And so if the Crown gave a monopoly that shut down your trade, the Crown was claiming a prerogative to do something that violated your traditional rights of being an Englishman. It's kind of cool that patents were kind of caught up in these broader constitutional debates in England about what's the scope of government power and what are the limitations on the government, and what defines legitimate authorized government action. 29:32 And through a few early court cases in the early 17th century, they try to impose some limits on the Crown. King James, who follows Queen Elizabeth, continues to abuse letters patent. So eventually Parliament steps in and passes what's called the statute of monopolies, 1623, which is a statute that limits the Crown's ability to grant letters patent and limits them to the first and true inventor for only 14 years. 30:03 That's pretty much all that it sets forth has a few other things. If you wonder why we have trouble damages for willful infringement, that's because in statue monopolies, if you can show that a person was deliberately infringing your letter patent, you could get trouble damages again. Because why? Because of history. 30:23 That's what they did in 1623. So we're still doing it to this day. Now. 30:31 Again, inventor in that term didn't mean inventor the way we mean it now. It meant just new to the realm. If someone was bringing something from the continent to England, you could still get a patent under the statute of monopolies. 30:45 But that still doesn't cure the problems. Patent disputes are still being viewed through a lens of this is a letter patent, so they're still being for instance, disputes with them are still being resolved by the Privy Council, which is the Court of Prerogative of the Crown's prerogative not through the common law courts, the King's Bench and the Court of Common Pleas. So this doesn't happen until the 18th century, where eventually the Preview Council cedes jurisdiction to the common law courts. 31:17 The common law courts then develop the specification requirement. You have to describe your invention. This is when you start to have in the 18th century sorry, it's the 18th century, 17 hundreds 18th century. 31:36 And the 18th century is when the common law courts then take over and they develop through common law adjudication specification requirements. They develop what we now patent lawyers know as the quid pro quo, this kind of contract theory, you're receiving a patent in exchange for disclosure of the invention, teaching the art. But through this process in England, they're still viewed and viewed as kind of being these personal monopoly grants, or at least they're no longer being defined as monopolies per se. 32:04 They're now being recognized as property rights because that was the domain of the common law courts, but they're still being recognized as personal property rights. So this is still a grant from the Crown and it's a personal grant to you. So it wasn't a full property. 32:18 Right. So if the Crown gives you something today, king Charles would gives you something, it's for you. So if he gives you Josh something, you can't give it to Ashley, you can't give it to me. 32:31 He gave it to you. And if you try to give it. Away. 32:35 That's not possible, right? In old kind of Seinfeldian terms, there's no regifting of the patent. If you got the patent, then you had to set up the manufacturing facility. You had to do all the commercialization. 32:53 You couldn't license it to other people. You couldn't transfer it. You couldn't create a market around it. 32:57 You couldn't use it for venture capital financing and things of that sort, at least in the sense of the modern development of this commercialization function of patents. This is all kind of what the United States embraces, because we in the United States say, no patents. We're going to treat these like property rights, because we really have rejected this notion of a royal prerogative grant in any way, shape, or form that's personal to someone. 33:25 This is purely a property right. In fact, early courts recognize this is why, for instance, the power to authorize the protection of patents is not placed in the executive. So if they really were following the English model, the founders would have made it part of article two, but they put in article one the power of Congress as the representatives of the people to protect their rights. 33:50 That was a key aspect of that. And part and parcel of that was also defining in the statutes that these are, in fact, property rights. They didn't call them property rights, but they said you had the right to use, make, and dispose of the invention starting in the very early 1790 statute, the very first one that's enacted. 34:09 And those were the key features of what makes something a property right. And therefore, in many respects, the patent system reflects what we talked about earlier, the declaration independence, the recognizing the rights of individuals and true split from England and kind of embracing kind of the protection of individual rights. In this instance now, the rights of inventors, we embraced a true invention standard. 34:35 So still, like in England, even at that time, it didn't have to be new to the world, just had to be new to England. And we said, no, it has to be new to the world. You actually have to be the inventor of it. 34:46 You have to be the creator of it. So it becomes very much imbued with this lockhean notion of you have engaged in productive labor, mental labor, which is even more your own labor than even your physical labor is. And that's what creates this entitlement that you have to have a right protected by the government, and that right is a property right, and that's key and essential to a free and flourishing society. 35:15 Yeah. Thank you. Sorry. 35:19 You asked a long question. No, that's okay. That's quite all right. 35:25 But that split from England is a really great segue to kind of where I'd like to go next. So we go from ancient Greece to Venice to England, and we're kind of up to we got a statue of monopolies, and we've got to have this seeds of what we recognize as a modern patent system, but we still have a ways to go. So income, those troublemaking Americans, right? These early Americans, they're on the heels of they've just won the Revolutionary War and they're busy forming a new government. 36:00 And it's pretty cool. They're literally starting from scratch, and they're getting to work out the here's what I would do if I could start my own country conversation that many of us would sort of love to have. But it's not in the hypothetical on Twitter or cocktail party conversation. 36:18 The stakes could simply not be higher. Right. They had just fought a bloody revolution, and now they're trying to come up with enduring political structures and trying to jump start trying to jump start an economy, right, because they want this thing to last. 36:35 And so there are clearly a lot of really important decisions to be made. But interestingly, right towards the top of that list for them is securing intellectual property rights to promote innovation. Could you talk a little bit about how that played out? Sort of like from the Federalist Papers on? Yeah. 37:00 So it is kind of pretty cool to realize how innovative the founders were, not just kind of in their broader embrace of natural rights philosophy and other theories that had been developing at the time. Like, they all had read Montesquieu. Montesquieu is the person from whom they learn about really, truly the separation of powers, principle and federalism and things of this sort. 37:33 They're true political pioneers, but they were also innovative pioneers, even in patents, as I kind of mentioned. But they weren't just deducing from on high like, oh yes, Locke tells us, productive labor, and this means property. The founders were very practical people. 37:53 They were practical statesmen. They weren't philosophers. They weren't writing treatises and philosophy. 37:58 They were writing practical works on how you have a government, how you get institutions started. And so it's very revealing. And we've lost the sense of the significance of this that they put into the Constitution in article one, section Eight, clause Eight, that Congress is authorized to protect. 38:20 It doesn't even use, by the way, the words patents and copyrights, just as the exclusive right to our authors and create inventors. And this is the very first time that the protection of what we now call intellectual property, that phrase didn't evolve until a few decades later in the United States is put into a country's founding document that in and of itself is tremendously significant and hugely important. It wasn't even debated. 38:58 Madison's notes from the Federal Convention of 1787 at the convention, you know, in Philadelphia over that summer, where, you know, they wrote the the Constitution, you know, when the you know, when the clause was proposed, madison notes that it was adopted without debate. So there's almost no there's nothing on it from the convention. What happens otherwise? Well, I mean, they debated a lot of stuff. 39:26 There's notes behind me on my bookshelf. His book. That book is this big. 39:30 But it was very interesting that this was something they didn't debate, that a lot of them recognized that this was something that was important and in part, they recognized was important from their experiences. So, for instance, George Washington was himself what we now call an angel investor. So he personally funded inventors to work on inventions, especially some people working on steamboat technologies. 40:07 But also what a lot of people don't know is that two very significant early American innovators and creators actually went to the Constitutional convention to tell them, we have been unable to get effective protection of the rights of our creations. So one of them was Antenna Webster, who had come up with his first American dictionaries. Why? It's. 40:33 Webster's Dictionary. Very famous. And he had been going around to various states and registering it for copyright, because a lot of states had adopted copyright statutes at that time. 40:47 By the way, those copyright statutes were explicitly lock in. They say in their preambles that the creation of the artist is a product of the labors of the mind. It is theirs, and they have a right to the fruits of their mind. 41:04 But he was having to go to each state and get protection directly. And every state had variations in their copyright statutes. And this was a dictionary that was being sold throughout all 13 states at that time. 41:22 So it was a national product. And John Fitch, who was one of the early steamboat inventors, of course, Robert Fulton is the one who we all recognize as the inventor, the steamboat, because he's really the inventor of the first practical steamboat. He's the one who figures out the actual steamboat technology that works. 41:43 Just like Thomas Edison. It was actually not the inventor the of light bulb. He's an inventor of the first light bulb that actually works. 41:48 There were a lot of light bulbs before him that just didn't work as well. And Fulton was the same way. Fitch Robert Fitch was john Fitch was an early steamboat pioneer. 42:02 In fact, he actually demonstrated his steamboat on the Delaware River to the convention delegates. So they actually took a break from just debating and writing the Constitution to go down to the Delaware. Fitch does a demonstration for them of his steamboat. 42:19 But one of his points for his demonstration was, notice my steamboat goes between two states here, goes between Delaware and Pennsylvania, right? And both of those states have different laws with respect to this. And so it was made very clear to the founders very early on that people like Webster, people like Fitch, were going to be the fountainhead of the United States. These were the innovators and creators that were going to create a self sufficient, growing economy, what we now call our innovation economy. 42:56 And they needed to be protected. And that the types of products and services that they were going to be inventing were not just products and services that they invented and therefore they had a right to them, but they had to be nationally protected because the products and services were going to be used on a national level. So this wasn't like a farmer in Virginia who was only selling his corn in Virginia. 43:17 This was someone who was going to be moving a steamboat between Virginia and Pennsylvania and New York or selling a book, a dictionary in all the states. And so this had to be a national protection. This had to be protected at a national level. 43:36 And in fact, this is the last sentence in federalist number 43 where Madison comments on the patent Copyright clause. In fact, that's the longest commentary, public commentary we have by a founder, by a framer, I should say, because Jefferson is not a framer. He was in France at the time. 43:55 But is the five or six sentences that we have in Federalist Papers number 43, where Madison says at the very end of it, he says the states cannot provide effectual protection for inventions and artistic works, and so it has to be protected at the national level. And this is after, of course, he gives his fundamental justification, policy justification, that these are actually fundamental property rights. He also says that it's basically self evident right, that these things would, I think, scarcely be questioned because the utility of this. 44:39 So that's his first sentence in federalist number 43, which is about the powers delegated to Congress more generally in article One, section Eight. So article One, Section Eight, is the section of the Constitution where Congress is authorized to all of its powers that it has has no other powers outside of that section. So that's where Congress can create an army and a navy, it can create a post office, it can declare war, it can print money. 45:07 And by the way, this is where patents, copyrights are put right. This is on par with the creation of an army and a navy to protect our rights as a country. This is where Congress is given the authority to borrow money. 45:15 This is where Congress is given the authority to create courts. The only court that is mandated by the Constitution is the Supreme Court in the United States. All of the courts are created by statute, by Congress. 45:33 So they're creating the courts to resolve our disputes. This tells you how significant patents and copyrights are viewed by the founders. Federalist 43 is part of a couple of essays where he's just kind of giving short little summaries and descriptions of these various powers. 45:55 And one of them is article one, section eight, clause eight which is the Patent and Copyright Clause or sometimes called the Copyright Patent and Copyright Clause. And the very first sense of this is the utility of this power will scarcely be questioned, which shows you Madison's failure of imagination, but also how deeply baked into them, that this was self evident and didn't warrant a whole lot of conversation. Well, there's an ex sentence. 46:24 He says, the right of authors at common law has already been recognized in England. And by the way, what he means there is that the copyright is a property, right? And then he says the very next sentence, he says, the rights of inventors are justified on the same grounds, even though they were statutory in England, not at common law and statute of monopolies. And then the very next sentence he says, in both cases, both cases being pats and copyrights, the claims of the individual and the public good fully coincide, which is this really important recognition of the Founders that protection of the core rights of life, liberty and property is not just in the interests of the individuals. 47:09 This is the basis of how you have a flourishing society and that they viewed them as intimately linked and going hand in hand. And this is, in fact, I think, captured beautifully by the Declaration of Pendants that Josh referenced earlier, where Jefferson says the right to life, liberty and the pursuit of happiness. And they really meant that. 47:29 Now, they saw property as necessarily part of that logical progression. So he was kind of jumping over property not because he was downplaying it in any sense. He was just getting to the ultimate goal, because for them, they didn't think of property, individual rights as being some type of kind of abstract moral duty that had zero connection to one's life. 47:53 They viewed this as fundamentally part of what it means to not just live a happy life as an individual, but that all of the happy lives as individuals add up to a flourishing society that is peaceful and growing and successful. The proof is in the pudding. This is what, you know, what we've had. 48:14 And and so this is clearly how they're viewing patents, through this framework that they viewed all rights, and particularly property rights through that this was something that was key and necessary, that the good and the practical go hand in hand. And this is something, by the way, that is deeply part of Western philosophy, reaching all the way back to the Greeks, right? So going back to Aristotle, the whole point of living a good life, the whole point of virtue, is, in Aristotle's terms, eudaimonia, which used to be translated as happiness, but that in English doesn't really capture fully because we think of happiness as more of a feeling and can be fleeting. So it's now translated more precisely as flourishing, which captures more broadly that kind of happiness over the long term and all senses of it, not just physical success, but also kind of spiritual and emotional achievement. 49:18 And that's what protection of rights leads to and secures for us. And they clearly viewed patents as part of this, why they put in the Constitution. They saw this as connecting deeply with the success of individuals and the success of our country. 49:34 Literally the only place the word right appears in the Constitution. Yes. Which is significant. 49:41 It's hugely significant. Yeah, it's tremendously significant, right. Because pre bill of Rights. 49:46 So the Constitution is written in 1787, before the Bill of Rights is adopted in 1790. It's the only place where the word right is ever you'll ever find. So flash forward a little bit. 50:02 We've got a Constitution in place. Washington is delivering the first ever State of the Union. It's a pretty short address, but what's one of the things he asks Congress to do immediately pass patent copyright statutes. 50:18 Again, because, like I said, he was an innovator himself. He understood the importance of innovators as driving of the US. Economy, of helping make us an economically independent country and ultimately being a key to our success as a flourishing society. 50:42 And as I said, he understood this through his own kind of investment activities. Washington wasn't an inventor. Jefferson was an inventor. 50:49 And he understood this as well, which is why he was also put on the first committee to review patent applications. But Washington also, he deeply understood the importance of this as well. The first recipient of multiple patents is a man named Oliver Evans, who received a whole slew of different patents. 51:12 And he, like, the very first recipient of the very first patent. Samuel Hopkins licensed his patents, and one of his patents was on a new process of manufacturing. And Jefferson. 51:27 I'm sorry. Washington has a mill at Mount Vernon. In fact, you can still visit that mill still there. 51:35 And at the mill, he wanted to use Evans process. He was president at the time. Now, in England, when the government grants a patent, the government officials have an automatic it was called at that time, the Crown's, right? Or the crown's privilege. 51:53 Essentially, what the Crown giveth the ground, can use it and take it the way. So the idea was, yeah, I've given you this privilege, and it's my privilege to give, so I get to use it, too. That's part of what needs to be a privilege. 52:07 Right? It's like, what do we as parents have kids, right? The dad tax, right? I'm going to take a little bit of your food. We talk about this often. Yes. 52:11 I'm going to have a little sip of your soda. But the United States immediately said, no, these are property rights. We have to respect these. 52:25 And so Washington, as President, enters into a license agreement with Evans to use his patent in technology in his mill. Like I said, he could have, as a government, as the President used it and claimed, I'm the President. I'm using it as president. 52:44 It's helping as president. But even then, he was George Washington. There were tons of debates, and he was starting to be attacked by some of the political opponents. 52:54 But he was revered. And if he just took evans pat and started using it. Evans wasn't going to sue him. 53:00 Right. This is George Washington right. It shows you his commitment to this, his own personal belief in the importance of what patents represented. 53:13 That he was willing as an individual to license Evans patent on this manufacturing process that he then used at his mill while Washington was president. So our government isn't known to move super quickly. You could argue that was a design feature of the whole thing. 53:33 Study some of the founders. So Constitution is 1789, ish first, State of the Union is 1790. How soon do we have a patent statute? So the very first patent statute is the Patent Statute of 1790, copyright Statute of 1792, some of the very early, very first legislation. 53:55 So as you said earlier in his first address to Congress, president Washington said you need to enact patent and copyright legislation. I always like to tell people congress spent months debating about what they were going to call President Washington. Did they call him His Excellency, His Highness, Mr. President, his Honorable President and they immediately enacted the patent copyright clauses because it was in the Constitution they're authorized to do it. 54:24 It was recognized as a key and important feature of what they needed to do in order to get their country going. Even while the founding generation was starting to split between the Democratic Republicans and the Federalists, this crossed party lines and they recognized that this was essential to what it meant to have a successful country. Truly remarkable, isn't it? We're talking about something that's a product of the minds that gave birth to the, to the country. 55:03 And you know, it's, it's, it's embedded in the founding documents. It, it's, it's a focus of the early debates. It's like, it's the concept of intellectual property protection, even if they wouldn't have called it that at the time. 55:17 It was so inextricably linked with their concept of democracy and a pro growth economy that it was there from the beginning. I think that's hugely profound when we talk about the significance of, of patents mattering, you know, today that, you know, part, part and parcel with democracy and with a pro growth strategy. It was right there. 55:49 And I don't know, I just kind of building on what you said already, but I think that's huge. Yeah. So historians refer to have a phrase called American exceptionalism. 56:06 It captures this kind of radical break that the founding era represents. Even Americans went through a radical transformation in how they thought of themselves and how they thought of rights and the nature of government. Tween approximately 1750s and 60s, where they still thought of themselves as British subjects. 56:37 They thought of themselves as British subjects. We have the rights of Englishmen. The Crown is our protector of our rights. 56:47 They were imbued with Lockheed philosophy at that time. But Locke was still being in England especially kind of translated through the prism of British common law and the unwritten British constitution through the Magna Carta and the notion that Magna Carta gives us due process which is somewhat of an historical myth created by this whole revolution in the 17th and early 18th centuries in England. Because where they take these ideas from natural rights theory of limited government due importance and fundamental point of due process and protection of rights of life, liberty. 57:22 And they say, oh yeah, that's what was always the when we talked about the traditional rights of Englishmen, that's what we meant. Even though that's not really what they were talking about if you go back a couple of hundred years. So Americans in the 1750s and 60s still thought of themselves as British subjects by 1776. 57:41 They are not British subjects anymore. They are not talking in terms of the rights of Englishmen, they are talking in terms of natural rights. The Declaration of Pendants announces that all men are created equal and have the right to life, liberty and the pursuit of happiness. 58:01 This kind of radical transformation is exceptional. It becomes exceptional to the United States and to this very day it still represents a very different mindset. It's come to dominate the rights revolution much of how the world thinks. 58:15 But it starts in the United States and what a lot of kind of people today don't remember because we're so caught up in the various technical details and specific aspects of the patent system and the particular details of the patent fights is the patent system was very much part of American exceptionalism. It was not like this kind of continuation of oh yeah, we were just taking this from England because this is what we're doing. One sees this often in a lot of Supreme Court opinions and professors articles. 58:49 There's always this throwaway line that oh yeah, the US just kind of picked up the patent system from England. Well yeah, we did in the same sense we picked up our government from England too. We had sects of our government from England but we also changed a lot of our government and we did the same in our patent system and I've mentioned some of it the shift from a personal privilege grant to a property right. 59:08 Property right means something is commercializable. But Josh, you mentioned it too. They viewed the protection of patents as part and parcel of the broader framework of the protection of the rights of life, liberty and property through the rule of law and through the institutions of government that are stable and are accessible to all individuals and are defined by the rule of law and by due process. 59:38 So they were accessible to all individuals any person could invent. You didn't have to be an aristocrat, you didn't have to be someone with history. Any person could invent. 59:48 And so Sandal Hopkins and Oliver Evans, I mean, these were just general, regular people, but they treated patents like they treated the function of government to protect property rights and land in the sense of it was very easy. To go to the county recording office and to file your claim to claim to create a title V through a patent grant, through the state government by showing I've been laboring on this land. I'll file an affidavit this as I've been farming this land and now it's mine, or through the Homestead Act, which is set up a very specific process of farming and maintaining land for five years. 60:32 And then you would file an affidavit and things of the sort, and for a few dollars you would then get the title deed and they replicated that in the patent system for the exact same reasons. What creates the right to the patent is the action itself of creating the invention. And that is simply the job of the government to recognize that right now the legal right doesn't exist until the government secures it, but the moral claim exists. 61:03 This is what I found in the older cases. These are things people miss because we've lost a lot of the framework in terms of art that they use in the 18th and 19th centuries, early American legal scholars and judges and Congresspersons thought in this term and distinction between what they refer to as in Kuwait rights and Kuwait rights. In Kuwait right were your moral rights, your rights of life, liberty, property, contract rights that arose as rights. 61:36 And they were in Kuwait insofar as they weren't secured under the law. And so the job of the law was to perfect your in Kuwait rights by making them Kuwait, by then securing them under the law and making them truly protectable to you through the institution whose job is to protect your rights. And they provide that exact same framework. 61:54 So Chief Justice Marshall and others talk about the act of invention as creating the incoate right to a patent, to which then the inventor perfects by securing a patent and therefore making their right coate. Josh, you're exactly right. This is this view just part and parcel of having a government that protects all people's rights and protects them equally and through institutions that are accessible to all through due process. 62:26 You just hit on this thumb in talking about it not being remembered how radical of a break the US system was from the English system. I'd love it if you could elaborate more on the specifics of that departure. What was unique about the early US system and how did it solve some of the biggest problems that came with its predecessors we talked about and particularly the English system. 62:46 Yeah. So I often contrast the US. Against English system and I make English system look bad. 62:53 But the English system was good too, because you have to see what the English system, what came before it. So each stage, the next stage is better than what came before it. So the English were innovative and very farsighted for their contacts, right? So in recognizing that we have to take patents out of this kind of domain of pure, unadulterated, willy nilly, arbitrary prerogative of the crown, put it in a statute, define it, get it into the common law courts, and start protecting it in some aspects, like a property right, making an exclusive right that is, protectable to the person. 63:39 But like I said, it still had vestiges of this kind of royal prerogative that it arose out of, by the way. But this is why, in very many respects, why the Industrial Revolution starts in England, and historians and scholars have recognized this. The evolution of steam engine technology and many other technologies were protected by patents. 64:04 These were significant advances over the types of personal privilege grants or no protections whatsoever, or the kind of the guild system protections that had existed through the Middle Ages and up through some aspects of that time period before the English system wasn't advanced, but it had limitations. And as I said, these vestiges of a personal grant from the Crown. And so this meant, for instance, it wasn't a full property, right, in the sense that you could commercialize it. 64:38 And that's our kind of term. We taken commercial and turned it into a verb. So what we mean by that means that you can use it as collateral for a loan, right? So if you default on a loan, it gets transferred to someone else, right? So if something's personal to you can't transfer it to someone else. 64:53 So you can't offer it up as collateral for a loan if you default on a loan. So it's not the basis for investments in what we now call venture capital and things of this sort. You can't license it to other people. 65:03 You can't transfer it to other people to say, okay, you manufacture it and you sell it, and you do this. I'll just be the inventors. You can't embrace the division of labor, which Adam Smith in The Wealth of nations gloriously published in 1776, the same year as the Declaration Independence. 65:20 I mean, talk about in this historical happenstance that just perfect, right? Who recognizes in The Wealth of nations, right, that it's the division of labor specialization which is the key to the vast value creation, wealth creation you have in a society where people can specialize and focus on particular trades and then trade with other people and then therefore create massive amounts of wealth through much more cheaper goods. The example he uses is a Pin, and he kind of walks through, like how digging the ore out of the ground and carrying that ore to a factory and having that ore worked and manufactured and put into a pin. And then the pin taken to a wholesaler, and the wholesaler distributed a realtor. 66:06 And through all of this, he says if you look at each of these steps, if one person had to do it, the pin would cost. Hundreds and hundreds of British pounds. He says it costs mere pence. 66:16 Right. And the reason why is because each of these people are specializing in trading their labor and pan owners couldn't embrace that. So, like James Watt, who eventually is recognized as the inventor of the steam engine, even though he didn't invent the steam engine, he invents the mechanisms that make fully practical and usable the steam engine. 66:39 So he invents the condenser and the regulator. So the two shelled condenser for condensing the steam back into liquid so that it can then be transferred to be heated and steamed again. So there was massive amounts of heat through the condensing process before, so it's very inefficient and you're losing a lot of energy and making the energy. 67:06 So if you got more energy going in than you got coming out, you don't have an efficient process. But he also invents the regulator, which is even more important, right, which is the automatic device that prevents the steam engine blowing up from the pressure building up. James Watt, he was like the equivalent of an academic researcher. 67:26 He wasn't a business person, he wasn't, you know, but so but he got the patent, but the patent was for him. James Watt, so he had to team up with Bolton, who was the businessman. He couldn't just transfer his patent to Bolton because that's not what wasn't allowed in the 18th century in England, because, yes, it's a legal property, right. 67:46 But it's a property, right, that comes from the Crown, so it's still a personal privilege property type property. Right. That's why all the lawsuits are Bolton and what for all the patent infringement lawsuits, because the two of them were the kind of the co owners of this process of ultimately putting this into practice. 68:08 It still had all of these vestiges. It also still had the vestiges of this kind of prerogative process. So, as I mentioned earlier, originally, disputes over patents were decided by the Privy Council, which was the Special Kings Court, and patents themselves were issued by the King's Chancellors. 68:31 So these things weren't written down, they weren't governed by statutes, because this was still something that the Crown basically decided, how I'm going to do this? And it was extremely expensive. And basically, if you think of it, who had the access to the King's Court and the massive amounts of money to pay for getting the Chancellor to review your patent application and things of the sort. So this was largely limited to the Aristocrats, or at least the nouveau rish. 68:58 And so your average British subject, your peasant and things of the sort, they didn't really have access to the system in any meaningful way. Yeah. Really a system for the wealthy in the elite. 69:12 Right. The established one of the things I think is super, because that's the system it came out of because it came out of Queen Elizabeth looking around her, saying, yeah, you Darcy, I like you, you've been kissing my ass really nicely, so I'm going to give you a patent grant. Yeah, exactly. 69:36 I think it's pretty cool because they went a step further though, right? Beyond making it affordable for anybody. The language actually said that patents could be granted to he, she, or they. So beyond not just being opening it up, beyond the wealthy, this was a time when women, people of color, couldn't own property or vote. 70:02 And we've opened up the patent system. Yeah, exactly right. So all of this was building up to getting more into the nitty gritty details of how significant of a break the US. 70:17 Patent system was from England and why it's part and parcel of American exceptionalism. Because they really did shed all of these leftover vestiges of the royal prerogative. As I said, they put the authority to secure patents in Congress, not the Executive. 70:38 They would have put in the Executive if they wanted to continue to follow these practices. Congress, as the People's Representative, enacted a statute that applies to every individual. As you said, it says he, she and they recognizing multiple inventors and women they made, and as I said, they created processes. 71:03 So even when they created, even under the initial three person commission that they created to review patent applications, it wasn't this expensive process. And Jefferson and the other individuals who were on the committee were setting out various procedures and requirements for what people had to do to submit to them. And these procedures were being written down and were being eventually and some of them were eventually codified in the 1793 Patent Act. 71:31 And in fact, the Patent Office is the very first regulatory agency that's created by the federal government. Because eventually they said, look, the Secretary of State and the Secretary, this is too much. We had too many other job responsibilities. 71:48 We can't be reviewing patent applications. So we need to put this in a separate office that's run by an individual who's designated job to do this, the Commissioner of Patents. But they created this office through the prisma. 72:04 It has to be governed by the rule of law. So immediately the office created regulations for how they're going to function and operate. They set fee rates at very low levels. 72:15 They allowed anyone to apply. And historians have found patents that have been were filed by slaves because they were an individual who invented something and they filed for the patent, their name had to be on the patent grant. There were some other cases of slave owners, like lying and claiming to have invented something their slaves invented, but they were lying. 72:43 And if they had been found out that those patents would have been invalidated. It's only after the fact that we now know this. They created the true invention standard like this really is. 72:54 It has to be novel to you. You actually have to be the inventor of this. So if we find what we now call prior art. 73:01 This wasn't a term that really had that yet. But if you find prior art in some obscure corner of the world, that counts. And there's a story that Isaac Singer, when he was in his patent battles with Elias Howe over and started the sewing machine war in the 1850s, that he allegedly went so far as trying to find prior art in China to try to invalidate house. 73:26 So they took it really seriously, and the courts recognize this. So England continuing to also to follow the idea that this is not fully, at the end of the day, rooted in kind of a lock in theory that you produced to this. You're the inventor of it. 73:40 England followed a first to file system. You didn't have to be the real inventor of it. You just had to be the first person to file for the patent. 73:52 And Charles Goodyear, who's the person who invents the process for making stable rubber as we now know it, he calls it vulcanized rubber. Vulcanization meaning heating. It was a heating process with balding chemicals. 74:10 He actually lost his patent in England because he made the mistake of sending a chunk of his rubber to an English scientist at that time who was also researching the project. His scientist reverse engineered his process and beat him to the British patent office and filed for patent. And when Goodyear filed for his patent in England and then sued, saying, I get the right to the patent, the English courts were like, you Americans. 74:35 You think you get the patent. You don't. This guy beat you. 74:38 You were first to file. And this was like written up in newspapers at the time, and people really were angry about it. This is one of the reasons why we break from England, because here we protect the real rights of real inventors. 74:49 By the way, Charles Goodyear is your good example. He was just this crazy guy. He wasn't rich. 74:54 He was actually very poor. He invented the process of vulcanizing rubber in the kitchen. The story is he ruined his wife's pots and pans because he was using his stove. 75:06 He was a destitute little person in this little town in Connecticut coming out of nowhere. And he comes up, he finds the solution to actually what was a vast technological and economic problem at the time. In fact, the equivalent of hundreds of millions of dollars had already been lost in people investing in other people's claims to have solved the problem of creating this kind of stable product of rubber that doesn't become brittle when it becomes cold and melt when it becomes hot. 75:41 And he kind of came out of nowhere. In fact, when he first came out of nowhere with his patent, people didn't believe it because there was in the early 1830s, there was kind of this their own version of what we know, our.com bubble. At the early at the turn of the 21st century where people had invested in all these people who claimed to have solved the problem and people had lost a lot of money. 76:02 And so when he kind of came out of nowhere with his solution, people are like, I don't believe and published patent actually helped him because he was able to say, look at my patent, you can read my patent, you can make the invention. And he was willing to license other people to make it and they were willing to take the risk and invest in it. And the rest is history in terms of driving the industrial revolution. 76:24 So all of these features, as you said, the accessibility, allowing all individuals to get it, the due process and the rule of law, all of this was essential. In fact, a very prominent economic historian, Zerina Khan, has come up with this beautiful phrase for the US. Patent system. 76:43 She's referred to as the democratization of invention. And that just kind of captures perfectly all of what I've been describing as typical academic and lots of words and lots of details. And she has kind of captured it perfectly with this phrase, the democratization invention, which is the title of a book she published in 2005 in which she describes some of these details. 77:05 Could you similarly talk about the elimination of the working requirement? Because I think that's another huge piece to the democratization. No spoilers, but just if you could talk about the elimination of the working requirement. Yeah, so the working requirement arose out of the original function of letters patent. 77:23 So this tool of the crown to promote the economic development of the realm and the only way the economic development of realm is going to get promoted is people actually come to the realm and start working their trades, right? And so the idea of a letter patent originally was, okay, I've granted you a monopoly. The condition of the monopoly is you start working it because it wasn't that it was new, it was new to the realm. So it could have been in books and used widely in continental Europe. 77:52 But the point is we need to get the economy of England going and the only way that's going to happen is if you work it. So this is my enticement to you and my gift to you as the king or queen is to give you a monopoly so that you have some time period to set up your trade and profit from it. In the English realm, in the Commonwealth, for a very long time in England, up through the 18th century, you had the working what was called the working requirement. 78:24 If you didn't work your invention, you lost her letter paid. And this starts to be displaced in the 18th century in England through the recognition of the quid pro quo, the bargain theory that you are fully describing your invention. And it's a new invention, so that anyone who reads it can make and use it. 78:51 Then you don't have to work it because anyone who's making use it can read it and figure out how to make it from there. This is what the US picks up and says yes. So the patent is like a title deed and it fully describes and defines the scope of your what is the asset to which you have your property? Right in and insofar as you properly describe it. 79:19 And in modern terms enable someone how to make and use it, then you have fulfilled the requirement of showing that you actually have come up with this invention and you have made it available to people. This is again part and parcel. You can also see why also this privilege grant that had to be worked by, for instance, James Watt personally, right? Why he had to work it personally is because it was all connected to the working requirement. 79:48 Because again, this was the part and parcel of it being a personal privilege grant where the US says, no, this is a property right, the value of it is the new invention. And like any property right, then the value of it is you go out into the marketplace with it and like Charles Goodyear, who never manufactured rubber, he tried for a little bit and gave up because he just was very bad at it. And so he recognized actually I should just let other people do it and fund my research efforts. 80:13 And he was crazy about rubber and that's all he really wanted to do anyway. The patent becomes the basis for licensing activities where then anyone can read the patent and say, okay, I know what your property right is, I know what your invention is. And this is essential to my understanding of then that this is something new and valuable and I'm willing to enter into a commercial agreement with you to manufacture it and to sell it. 80:30 And this is eventually what we start to call it the bargain theory. You disclose your invention. This is really, then, the ultimate culmination of the slow process over several hundred years that starts in England where we move away from trade secrecy and a guild system and monopoly grants directly from the government as the basis for protection of new inventions and new technologies, where people then have the ability to secure full legal property. 81:12 Right. Protection in new inventions and through that property right, protection like any other property right, where you can go to a county recording office and read anyone's title deed to know exactly what the needs and bounds are of their property and where their property is located. You can go to the patent office and read the patent and fully know what that property interest is. 81:37 And that then is the value of the patent because then the person who reads it can invent off of it. I can enter into a license agreement with you because I know what you're trying to sell me. You're not just trying to sell me the Brooklyn Bridge. 81:52 You're actually trying to sell me something that you actually have a property right in. And this becomes part and parcel of actually how we promote the progress of useful arts, because a lot of people think in terms of, oh, the point is that we're just dangling this little carrot of a monopoly or to inventors to get them to invent. They disclose it, and then we all are just waiting for it to fall off the patent term for it to fall into the public domain. 82:17 And that's actually not what is really the core function of the patent system. It's that disclosure function from the get go and the licensing and property rights that follow from that during the patent term. That's what facilitates the fast distribution of new innovations through society, growing our innovation economy, helping create a flourishing society as historically has happened. 82:39 And so patents really are not a blockade. They're a facilitator of access. They're a promoter of access to technologies. 82:46 And also because the person who invents something, then the next person says, I have a new way of doing that. And if insofar as it's new, they can get a patent on it. And then what they do is they turn around and they get a license from the original patent owner because the patent owner wants to make money, even more money off of that. 83:02 And this is why, to this very day, billions of dollars daily are traded over intellectual property assets. To be frank, the founders weren't thinking in these terms. They had bigger problems to deal with in terms of getting our government going. 83:25 But this shows you, again, how incredibly intricate and integrated it all is. You create a system where you say, these are property rights. This is what it means to have property rights. 83:35 You protect them within a system, the rule of law with stable and political, legal and political institutions that anyone has access to as a citizen. And it creates all of these what economists call dynamic efficiencies, all of these unintended benefits, all of these unintended additional values, creation that just make individuals better off and society better off. And anyone who knows the history of invention, innovation, also knows that's just the story of history of invention, right? Most inventors don't even know the real value of their inventions. 84:16 Dr. Irwin Jacobs the inventor of what is CDMA technology, and people may not know that, but that's two G, three G, four G, five G. The G is just the generation, right? So that is the digital transmission technology that is the foundation of the entire mobile revolution. Vince that 1988. 84:36 And he has said many times, he's like, we were just thinking in terms of trying to make video conferencing easier for, you know, easier for, you know, for businesses. We had no idea, like, that, you know, we were going to be creating these devices that, you know, you could check your email and watch movies and share videos of cats riding roombas and all sorts of stuff or stories. I always like to tell is Alexander Graham Bell thought one of the really cool and important uses of his telephone service would be for people to listen to concerts so that you could run wires from concert halls. 85:14 So people didn't all have to go to concert halls because they're only so big anyway. So people could run wires from concert halls and people could listen to music in their homes through this telephonic device. And Thomas Edison thought that one of the primary functions of the phonograph would be for people to record messages. 85:38 So instead of writing long letters, you would use the phonograph record essentially a version of a recording voicemail message for someone and give the phonograph to someone and they would take it to the other person and they would play it back and listen to it, right? So he thought of as a way that people would transmit information, business persons would more easily and efficiently communicate with each other. What actually happens? Actually, the telephone becomes the device by which business people actually more efficiently and easily communicate information to each other. And what does the phonograph become? The phonograph becomes the record player becomes the device by which people listen to music in their homes. 86:17 So even the inventors don't even realize where their technologies are going to and how it's deployed in the marketplace? No. It's amazing, isn't it? And that's what I really love, that phrase, democratization of invention and consequently innovation. Because if you're trying to build a giant's shoulders to stand on, the best way to do that is to open up that process to the masses and get the biggest volume of disclosure and iteration amongst the largest group of people, right? And so when you look at these things in totality, when you create a system that's accessible to everyone and you eliminate working requirements so that people don't have to have factories or marketplaces to sell things, and you introduce a transferable property, right? To build a bridge from the smallest inventor to the folks who have the real capital to do this thing. 87:11 And you unleash it on so many people that there is this massive amounts of disclosure. So there's the intentional invention and then there's sort of the things that we run into indirectly like you were talking about. It's amazing the thrust of that. 87:29 When you put all those pieces together, the sum is truly greater than its parts. Beautifully stated, Josh. Perfectly stated too. 87:38 Yes. And the founders were forward looking in other ways too, that I haven't even mentioned, for instance, in England being very much about following past practices and traditions, modifications on their edges, but primary. That's the very nature of an unwritten constitution, by the way. 88:02 The founders are the creators of what we now call constitutionalism which is this idea of having a written foundational document that we call the constitution that starts with the founders of our country. That before, you know, before the United States, that really doesn't exist in, in the world the, the way that we now have it, where now today, like, you think, like it's insane not having a foundational written document. It's how much they radically they change the world. 88:28 In England, you could only get patents on machines or the products of machines or what we call manufacturers. Whereas the United States recognized in the very first patent act in 1790 that one of the things you could get a patent on was what we now call process. They called it an art at the time, but so a process. 88:49 In fact, the very first patent that issues to Samuel Hopkins is a process patent. It's a patent on a process of making potash. That patent would not issue in England, because in England, you couldn't get patents on processes. 89:02 They didn't view those as patentable inventions. They were thinking in terms of very kind of concrete things, a machine like steam engine or the byproduct of a machine, a shoe or something. And we said, well, no, but the process has to be invented, too. 89:17 And that's a valuable value creation itself. And this is really true, because at the end of the day, this is me now stepping back into philosophy mode. Everything has to be invented for humans. 89:28 We're not born into this world with instincts the way that lions and tigers and others are, right? The lion doesn't need to learn gazelle's food. It just knows it right. We have to learn what is food and what is not. 89:44 And not just that. We're not born with instincts like don't eat the poison berries. We have to learn this by watching someone at one point eat a poison berry and they die. 89:53 And then we're like, okay, don't eat those, right? Eat the other berries. Eat the bottle, big cherries. And then we have to learn processes of how to make food, how to grow cherries, how to grow wheat, how to grow I mean, the husbandry and the process of farming itself, for instance. 90:14 These are processes. We have to learn this. And these are inventions in and of themselves. 90:19 And it was very far reaching and forward looking of the founders in the first congress to recognize that is a protectable invention in and of itself. And it's that kind of forward reaching, forward looking approach, right? We are creating the legal system for the new values that are going to be created that we can't even conceive of yet. That is the reason why then the United States becomes the protector and of the new biotech innovations in the 20th century and becomes the protector of the new computer and innovations in the late 20th century as well. 91:00 In fact, as I identify as an historical pattern, the industrial revolution happens starts in England, finishes in the United States, the pharmaceutical revolution starts in Germany. So it's the Bayer and all these companies were originally were dye manufacturers through the chemistry revolution of the late 19th century. When you have Mendelssohn and finally agreeing on scientists, finally agreeing on the atomic theory as the foundational structure of matter and the table of elements Mendelson's, invention, you can start getting incredible new practical applications of it. 91:46 And one of the very first ones is discovery working of dyes and from dyes figuring out chemicals that actually affect people and make people better like aspirin comes from there soon core that all happens in Germany and medicine is Russia, but it ends the United States, it shifts to the United States. In the 20th century, that historical pattern disappears. By the end of the 20th century, the biotech revolution starts in the United States, the computer revolution starts in the United States, the mobile revolution starts the United States. 92:20 And so we are now no longer finishing the practical applications of more fundamental scientific revolutions. We are actually the source of both the scientific and the practical application in real world innovation in society and that is being facilitated. And Josh, your beautiful phrasing of it is the patent system is serving that bridge from the individual inventor in the lab and in the garage to the marketplace. 92:50 And so now our researchers and our discoverers are getting funding upfront at that early research stage because they're going to get a patent. Because that patent is going to serve as the property, right, as the basis for contracts and commercialization activities and licenses to then deploy in the marketplace. Yeah, absolutely. 93:08 And I think that kind of answers honestly my next question, which was just the fundamental debate around pads, has always been whether they promote innovation or hold it back, right, bridge or blockade. And certainly some of the earlier systems we talked about weren't necessarily economic accelerants. You could argue that it was like early croning capitalism to some extent with some of the stuff that was going on in England and whatnot. 93:36 But how do you feel economists and historians look at the economic innovation impacts of America's experiment in this sort of democratizing of the patent system? Yeah, that's a great question. It's a great way to end our kind of conversation because patents have always been intellectual, property more broadly have always been controversial because what property rights have always been controversial even in the founding era and there are philosophers starting to attack it. Pierre Joseph Prudone writes his track and friends, his track is called what is property? And he's the person who famously said what is property? Property is theft. 94:18 Prudone is one of the intellectual fathers of Marx. So Marx is basically a mixture of prudonian, anarchist, socialist thinking and hegelian thinking. So he very innovatively combines these two into what becomes known as Marxism. 94:40 And this is all occurring at the same time. That we're talking about, the founder is setting forth protection of individual rights and private property, not just in land, but in new inventions. And so patents have always been controversial. 94:51 They've always been attacked as being monopolies and stifling innovation and stifling people and being antidemocratic and people. Samuel Morris, the inventor of the telegraph, electromantic telegraph, and the code that goes on it that we now call Morse code named after him, but he's primarily the inventor of the telegraph in which his code worked, but the two went hand in hand. He got patents on both. 95:15 Actually. The person that he ended up in massive litigation with, O'Reilly, when he copied Morris's telegraph, he called his competing telegraph line the people's line. This is the 1840s, right? So this is always this notion, I'm bringing it to the people and stopping these monopolists from hoarding it and stifling the dispersal of all of this great new technology and new values. 95:48 So it's always been controversial. And unfortunately, as I mentioned, with the 1790 Patent Act, it cut across party lines both between Federalists and and what were then the Republican Democrats, the Jeffersonians, that that know you, they wanted to protect patents and copyrights. Opposition to patents cuts across party lines, too. 96:09 So you have people on the left who are opposed broadly to property rights, also oppose property rights interventions. That's not surprise. But you also have people on the right libertarians, and this is even true historically, not all libertarians, but some view patents as all these are these monopoly grants. 96:29 They're clamping down on ideas, and this is preventing the free market. And they view them through this old lens of kind of the royal monopoly grants of which they originally were. And unfortunately, that creates sows a lot of confusion because you have people who normally nominally stand for the free market and for property rights, saying IP is not a property right, and joining with leftists oftentimes and filing amicus briefs and things of this sort where they both argue that the patent should be rolled back and they should be, or ideally eliminated. 97:03 In their mind. The problem with a lot of these approaches and the general tax is, you know, a lot of them start from the premise, well, intellectual property, it's weird. It's it's something different. 97:20 You know, you people who are trained in economics, oh, it's not rivalries, and it's not exclusive like land is and things of this sort, all these things. So it's an OD thing. So all of that adds up to a very simple point. 97:33 It starts from the presumption that intellectual property is guilty until proven innocent. So it starts from the presumption you can't have it unless you can prove it does lead to innovation. You can show causally. 97:45 We have to have that study. You hear this constantly from scholars. You hear this from government officials all the time. 97:52 Oh, where is the study that shows causally? The link between having. A patent and x percentage of innovation or x percentage of economic growth in society. I push back against that at what a philosopher or economic would call the meta level, right? Which means I question the very foundational assumption of that, of that, of that request or of that demand, because we don't have any evidence that protection of any specific right causally is linked to innovation and economic growth, including property rights and land. 98:32 You will search in vain for the economic study, which proves without a doubt holding constant for every what economists call confounding variables, all the various things that could influence it, right? That proves with absolute certainty, as a matter of causality, that having property rights in land leads to economic growth and x number of property rights leads x amount of percentage of economic growth. There is no study. What we have are massive amounts, massive amounts of correlations and historical evidence and historical development that if you protect property rights, it leads to economic growth and successful societies assuming other things like rule of law, stable and political legal institutions, equal protection, due process and things of this sort. 99:26 So that's what we have and that's all that we ask for, because that's all you can show. And it's important, right? The founders didn't say, oh, until we have the empirical study, we can't create the United States of America to show that the rights of life, liberty and property are going to be right. They knew already, having observed even their limited time period in the 18th century. 99:47 But also, if you read the Federalist Papers, they are imbued with history. I mean, the founders were students of human history. They knew all about all the Greek city states and the sweet, and the Swiss city states and the various Venetian city states and everything that had happened over the span of the past 2000 years. 100:11And they were bringing that knowledge to bear in their thinking about how to create a government. And a lot of what that history told them was the protection of rights is fundamental to having a flourishing, successful society where you write it down in a constitution, you have the rule of law, you protect equal protection of rights and things of that sort. Now, they weren't perfect, they made mistakes. 100:34We know that there are errors in the constitution. But when you look at where they were coming out of and what the rest of the world was still doing at that time, they were incredible achievers. And we should recognize that achievement for what it is. 100:48And patents are the same. Patents are the same. They're the exact same. 100:53The exact same historical and broad economic evidence or correlation of countries that protect patents and other intellectual property rights, including trade secrets and trademarks. But the broad array of intellectual property, when you have the rule of law, when you have stable legal and political institutions as part of the rule of law, equal protection and due process. When you have patents added to that mix, just like with regular property rights and land and farms and things of that sort, you have economic growth and innovation, repeated, consistent, strong both historical correlations and even recent economic study correlations, strong correlations, the exact same strong correlations we see with other property rights. 101:48In other words, patents are property rights, just like the founder said. Therefore we treat them the same as any other property. Right now we think, oh, these are weird property rights because they came, they're like new. 101:59Well, yeah, and they're relatively new because they arose and they're correlated with the Industrial revolution. They helped make the Industrial Revolution, they helped make the Biotech revolution, as Ashley mentioned earlier in the computer revolution. But all property rights are relatively new at some point or other, right? So if you go to the founding period at that point, the types of property rights that we now think of as kind of old and established and totally taken for granted, like property rights and land, those are relatively new. 102:30Those property rights as they existed and were protected as property rights, really only existed for a couple of hundred years at that point, fully as we now know them. And there's tons of other types of property that exist and types of legal institutions that exist now. They're totally new that we don't say, oh, that's guilty until proven innocent. 102:47Like corporations, corporate forms and credit and rights of privacy and even the broader sense of the right of free speech and things of this sort. Right. So the newness of something doesn't mean it's suspicious or problematic. 103:04It shows that it's part and parcel of what the last 200 years has represented to human existence, which is it's an unveritable miracle. So historically, if you look at the graph of the past 4000 years of relatively modern human existence, human growth, as Joshua show, is flat. It's relatively flat. 103:28And then all of a sudden you get to the 19th century and it's like starship that just went up. It doesn't blow up, it goes straight up. Starting in the 19th century. 103:38Greatest hockey stick graph ever. I know, and it's incredible. And what happens in the 19th century? You could say what's industrial Revolution? Yeah, but what was the foundation of the Industrial revolution? The foundation of this revolution was a property rights system, an intellectual property right system, the rule of law, the limited government, full democratic access to government in the protection of individual rights of life, liberty and property, including intellectual property. 104:09All of this adds up to and this is kind of I'm sorry for being a bit long winded on this, but all of this adds up to the point that this kind of idea that patents blockade innovation from my perspective, if you hold the full context of what we understand about property rights generally in the history of even just the past few hundred years. There's just nothing that supports this view. And it's really revealed by the fact that they always have some anecdote. 104:39Well, I know of someone or something that was stopped from doing something. It's like, well, I could come up with same anecdotes about regular property. I teach real property cases to my students every year about guys who chase kids with iron pipes off their property, right. 104:53And things like that. It's like we don't there oh, my god. Property rights and land is a threat to children. 105:01If you just hold context and really view intellectual property, recognize intellectual property is a property right, like anything else. And thus, it's what's facilitated access. It's what's facilitated innovation. 105:13It's what's facilitated not just people inventing, because people have always been invented. It's what's actually facilitated the deployment of inventions, the creation of innovation out of inventions, and the ability for everyone from the inventor to benefit from the fruits of their labors to the society itself. All the people who could never have conceived of that product, could never have conceived of the various business mechanisms, the factories, the complex disaggregated supply chains that make our smartphones now globally and everything else to benefit from those things. 105:47And that's incredible. It's just this idea that patents represent this kind of trade off. Oh, we blockade access because we grant these exclusive rights that prevent access as the only way to incentivize people to invent is pure, just, unadulterated ideological theory that people are imposing on the facts of the world and on the facts of how our actual economy and society have been functioning. 106:20And to kind of tie it all back, to go back to our original discussion, and so the people who take that framework really are starting from the premise, my theory says your facts are wrong. That just can't be the case. Now, I understand why a lot of people are confused, because so many people have been saying this for so long, it's become conventional wisdom. 106:40But I think it's really important to kind of start from that original premise that don't even try to argue it on those terms because it's a mistaken theoretical framing that we don't argue and justify regular property rights or the rights of liberty or the other types of rights on these grounds. And patents are no different. And that was the great insight of the founders. 107:06Patents are no different than any other. Right? Yeah. True to beautiful harmony between bargain theory and natural rights theory. 107:14And it's impossible to know what our world would look like void of the patent system that we have. But what we can definitely say is that sort of explosive, the notions of patent systems goes all the way back to ancient Greece, where we started, and we didn't see these kinds of periods of explosive growth prior to we do know what the world looked like before the US. Patent system. 107:40And we talked about that sweet looking hockey graph with its first data point starting right around 1790. Well, we can't say for sure what the world would look like without our patent system. We know what it's looked like with our patent system, and we know what it looked like with prior iterations of patent systems that did not have the democratization component. 108:00I think you can draw a pretty strong conclusion. I mean, there are more specific studies. I'm happy to talk about them. 108:08I just don't want to talk about them with the mistaken premise that I'm working from the premise that this overcomes the presumption that patents are not proven already as being valid. But so, for instance, Ashley mentioned the biotech revolution. So there's your kind of classic example that really confirms the value of patents as property rights, not as monopoly grants, because it is a little bit anachronistic to say what they had in Greece as patents. 108:37They really didn't, because patents today mean something different. And so this is you have to be careful when you say, well, these kind of precursor patents. Yeah, but then people get confused. 108:45Well, what is the patent then? Is it these kind of early monopoly grants? Is it sole monopoly grant? No. There was this break in 1790 with the first patent act, and that really is significant. But the biotech revolution occurs in the United States. 109:01And Ashley mentioned this earlier, and I referenced it because the United States took the lead in recognizing as patentable these new genetically modified organisms and new methods of kind of creating what are called monoclonal antibodies, which is the basis for diagnostic tests and genetic manipulation of DNA and things of this sort. We took the position that this is actually patentable inventions for the same reason the founders took the position that processes were patentable inventions. The rest of the world hesitated because they were like, oh, I don't know, this is like life, and this could lead to Frankenstein and all sorts of stuff. 109:38And so Canada and Europe and all the other countries that had modern patent systems said, we're not going to protect this. And then there was a period of about ten to 20 years where the United States was providing reliable and effective and dependable patent protection, the things that the rest of the world was not doing. The rest of the modern world. 109:57And where is the biotech revolution happening in the United States? In fact, it continues to still happen in the United States. As a result of this, to this very day, almost two thirds of all new drugs are invented in the United States. There you go. 110:15Other countries patent systems, or we revolutionized other countries patent systems. By the late 19th century, other countries were like, oh, my God, what's happening in the United States? And they kind of looked at us and said, they've got that interesting patent system. We maybe should start copying some aspects of that. 110:28And they did not all aspects of it but they copied a lot. Most modern patent systems have a lot of elements that we are the US kind of innovated. And so you have other countries with same similar types of patent systems but those protections were denied to biotech innovators in the 1980s and look what happens in the United States, it happens here. 110:51Venture capital flows into biotech innovators know that if they spend years of their life inventing, they'll be able to reap the fruits of their inventive labors. Venture capitalists know that they can invest in this. The whole startup economy arises in the biotech space because of this spin outs from universities thanks to Baidol. 111:12And there you go, right, exhibit A. But we don't have to have that. That's like icing on the cake. We already have the evidence that's just like the nail in the coffin for us because the actual and I couldn't call the coffin that's the golden goblet that's already been made by the patent system historically over the past 200 years for sure. 111:39I think the point I failed to make and then I promise I'll let you go. The point I failed to make and one of the reasons why I wanted to talk about some of the historical context stuff, why I thought it mattered. And if this is totally off base in an illogical conclusion, feel free to completely shoot it down. 111:54But where I was going with some of that was there were earlier notions of protecting an invention, whatever we want to call it, even remove the language of the word patent or the language of the word intellectual property. There were earlier concepts of protecting an invention, but it wasn't until later on that the US added these other democratized elements of sort of being accessible to all of being a transferable property, right? Of eliminating the working requirement that we saw a system that embraced protecting inventions with an economic correlate in an innovative correlation potentially as well. And one of the things that I find sort of almost offensive about some of the modern arguments against patenting is that people immediately go to patent trolls and we talked about this earlier but it's like it's these virtues of the US system around accessible to all, elimination of working requirement and transferability of the property, right? That's essentially the sort of things that get cast as trolling now for NPEs. 112:59But these things were absolutely integral to the early success of the system and were founding virtues of the system. So one of the things that's like the biggest attack vector now was actually one of the foundational virtues like these concepts of accessible to all and transferable property rights and elimination of working requirements. These didn't happen in courtrooms, these weren't the byproducts of attorneys later on. 113:28They weren't abused systems. This is the system as designed. And what we saw that happened after that was explosive growth. 113:40And so that's why I was kind of trying to juxtapose the virtues or lack of virtues of some of the earlier systems. So some of the things that were added to the US. System that I believe were key ingredients to that economic and innovative acceleration that's now unfortunately become the attack vector of opponents of patent systems. 113:59Does that all kind of make sense? Yeah, you're right. I disagree with you a little bit on the margins. You really framed it very beautifully and very succinctly and nicely. 114:15Patent troll is just a new variation of an old attack that has long existed. In the 19th century, they called them sharks. That was actually the term for the people who were buying and selling patents and were suing people who were infringing their patents. 114:28And back then, it was the railroad companies that were largely being sued and established industries that were being sued by new innovators. And they spent a lot of money lobbying to create this narrative of patent sharks. And there were actually were bills introduced in congress in late 19th century actually get rid of our patent system. 114:47Even so, these fights are old. They're old in the art, as we would say, in patent law. And they were attacking the very virtues of the system that you've identified, Josh, and you stated very beautifully. 115:01The framing, the institutional features, and the procedures and the various legal rules of what it means to protect a legal entitlement as a property right are really key. This isn't merely an issue of, like, labels or rhetoric. These words mean something, especially in the law. 115:24And that's important because that provides a legal foundation or platform, just like contracts and property rights more broadly do for economic activity and for activities that lead to flourishing lives generally. The only thing that I would slightly disagree with you on is that it's not just those features. The founders were radical when it came to inventions. 115:46I don't really think that those earlier systems protected inventions. Right. The term invention means something now that it didn't mean from 18th century on, 18th century going backward. 116:01Invention just meant at that time something kind of new to a society. It didn't mean something actually new as such, something that was actually created by a particular individual. It could have just been something that you brought from some other place, something you brought from France to England, or something that you brought from Sparta to Athens. 116:26This modern notion of invention as being the actual creation of something new. The US. Novelty requirement that we threw away in 2011 with the American vents act, which was very much animated by this lockhean notion that the person who creates something in lockheed metaphor terms, they've mixed their labor with the materials of the world and they've created a right to it that was very much a US. 116:54Innovation. And in fact, that very word innovation has also shifted in meaning, as I said at the very beginning, too, to bookend, our conversation. Sometimes reading historical documents is a bit like visiting a foreign country. 117:10And it's even more dangerous when that foreign country is writing in the same language as you, because your presumption is, oh, all of these terms mean the same thing. So the word innovation existed in the 18th century, 17th century, even the 19th century. But if you read someone being referred to as being innovative in an 18th century text, that was not a compliment. 117:30That was actually a pejorative insult. It was a pejorative term to be innovative meant was meant to be devious, to be scheming. Like philosophers engage in innovation. 117:44In fact, there's lots of writings by the founders where they're referring to other founders. That's just him being innovative. And you think, so complimentary. 117:54It's like, no, that was like a whole body slam. Yeah. So, yeah, innovation was a pejorative term. 118:08Innovation. Its term is radically changed in 1940s by and I'm blanking on his name. I'm never really good with names, except for inventors. 118:18It was the head of Bell Labs. I'm blanking on his name at the moment, but he went in the late 1940s, Bell Labs realized that they needed to get the public behind them because they were starting to be attacked by the US. Department of justice and antitrust attacks and things of this sort. 118:37So they realized, we need to let people know what we do. They went kind of on an international or national I shouldn't say a national PR campaign, where he goes around speaking science societies and legal associations and stuff around the country, trying to describe what they've been doing at Bell Labs, where they're inventing the transistor, they're inventing microwave technologies. They're inventing digital transmission technologies. 119:06So much of the modern world has come out of the Bell Labs because it was an invention factory. And he's like, the word invention doesn't really fully capture what we do because inventions have always been around. So what are we doing that's different? So he actually decides that the term innovation kind of captures exactly what they're doing, which is what Bell Labs was doing. 119:25Bell Labs was taking inventions and making them real world products and services that benefited people. So it wasn't just something that some scientist was putting on a book. They were getting a patent. 119:37They were licensing it. They were deploying it into the marketplace. And he calls that innovation. 119:43And it's because of that that innovation comes and they succeed in their campaign. And it's because of that then you have what linguists refer to as a linguistic shift. And innovation no longer means something pejorative and negative. 119:57It actually becomes positive. This is why my only disagreement with you is on the margins, where you say there was some recognition of protecting inventions in Greece and things of this sort. I mean, there was some recognition that we in Athens needed newer stuff. 120:18They may have had that stuff in Persia and in sparta. We want to get that new stuff, too. Whether it comes from people actually here in Athens directly ex nelio, or whether they steal it from Sparta or what. 120:30We don't care because we're trying to beat out Spargo and Persia and even like in the statue of monopolies, where they refer to the first and true inventor, which today we always first invent. No, they meant the first person to bring something to the realm. They didn't mean really something new. 120:52They didn't really particularly care if it was new, if it actually benefited the world writ large, is because they were still very much thinking in terms of, well, this is about England beating out France. It was still thought in terms of national economies and national interests, national industrial, domestic policies. And again, this is the insight and the wisdom and the radicalism of the American exceptionalism of the founders. 121:19Right. They really took seriously this universal notion of the natural rights of individuals. Yeah, they were mistaken in some of their applications of it, but these mistakes were eventually fixed. 121:32But they did, at least at the theoretical level and at least in the patent system, they understood this is a universalizable principle, this applies to all people. And this is about making all people better off, whether you're Americans, whether you're British, whether you're French, this is about anyone, by dint of being human being, can invent something. And just like anyone can become a farmer and farm till soil and chop down trees and create a farm out in the wilderness, anyone can invent something and that should be protected and secured to them. 122:12You're right. And then all those other features are just as important because it's all integrated. You can create a patent system, but if you don't do so in a system that respects equal rights, has the rule of law, follows statutes and provides due process, you can build a patent system all you want, but nothing's going to come of that. 122:33Eventually, it all goes together. And the features that you're talking about, yes, are attacked today because they are virtues. And they were virtues exactly. 122:46Because also they were protecting and recognizing what it really meant to have a new invention and recognizing the legitimate claim that an individual has to that Lockheed metaphor that I always love the fruits of their productive labors, which applies just as much to an inventor as it does to a farmer or a machinist or any other craftsman or a person who's practicing an art or trade. And is Abraham Lincoln so beautifully said, who believed that the patent system was the third greatest invention in the history of the world, that the patent system added the fuel of interest to the fire of genius. And he knew of what she spoke because he had a pat. 123:29All right, awesome. Adam, thank you so much. Appreciate all of the time and context and amazing historical education. 123:38This is awesome. I hope I didn't go on too long at times. No, I get too excited and caught up in all the details. 123:45No, that's okay. There's so much there, and it's so hugely significant. So we appreciate it. 123:56Always a joy. Always enjoy to chat. Well, I give as good as I get. 123:59I mean, your little write up that you sent me was fantastic. If you and Ashley are going to put in such excellent productive labor yourself, I'm just reflecting back on you on our wonderful specialization in divisional labor, the, you know, the exact, you know, value. And as a result, you know, we get really that's that's what makes me excited and fun when interacting with people like the two of you. 124:28This was a great excuse, too, for me to do a little bit more of a deep dive. And we've always just kind of an aside, I've always wanted to do a History of Patents episode, but I wasn't never sure editorially how to make that interesting to a broader audience. And then when you said the thing about being a victim of their own success, it was like, oh, my God, that's the answer. 124:50That's why the history is relevant to today. Yeah, and it's true. You can see in the 19th century, too, and all these people there is like, yeah, properties is there. 125:10They treat it like mana from heaven. It's all just raining down. We just need to split it up. 125:20And the person who hoards it is unjust and evil, and it's stealing from other people. It all has to be created. Everything. 125:38When I got a little philosophical and he was like, yeah, we have to actually think of stuff and come up with it, because that's how we live. That's our only competitive advantage, is our minds. This is awesome, guys. 125:53Yeah, gosh. Absolutely. All right, that's all for today, folks. 125:56Thanks for listening, and remember to check us email@example.com for more great podcasts, blogs, and videos covering all things patent strategy. And if you're an agent or attorney and would like to be part of the discussion or an inventor with a topic you'd like to hear discussed, email us at firstname.lastname@example.org. Do remember that this podcast does not constitute legal advice. 126:15And until next time, keep calm and patent on.