Before America's patent system, an inventor in England had two options: navigate a political and bureaucratic process that cost years of wages and required connections at Court, or watch someone else take his idea and profit from it with no legal recourse. America answered that problem in its Constitution — before it answered almost anything else. This episode is about what that answer produced.
Everything in this episode is sourced to the original documents. Where the outcomes were morally complex — and one of the four stories in this episode is very morally complex — the full picture is presented. The record does not need to be edited to make the argument. The argument is in the record.
England had a patent law before America did. The Statute of Monopolies of 1624 was the world's first statutory patent law — it was passed specifically to limit the Crown's practice of granting monopoly privileges as political favors to courtiers. It was a reform. But reform of a corrupt system is not the same as a new system, and the English patent process remained expensive, political, and practically inaccessible to ordinary inventors for the next century and a half.
"The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
This clause — written into the Constitution at the Philadelphia Convention in 1787 — is the only place in the founding document where the purpose of a Congressional power is explicitly stated. Congress has the power to grant patents and copyrights. Why? To promote the progress of science and useful arts. The founders wrote the goal into the document alongside the power. This was not incidental. James Madison, in Federalist No. 43, called it a matter of "reason" and "public good." It was the third major act of the First Congress. George Washington called for it in his first State of the Union address on January 8, 1790.
Source: U.S. Constitution, Art. I, Sec. 8, Cl. 8 · archives.gov/founding-docs/constitution-transcript → · Madison, Federalist No. 43 · Avalon Project →
The patent system is not an abstraction. It is a series of specific transactions — specific people, specific inventions, specific economic outcomes — that are documented in the archive. Here are four of them, starting with the very first.
A Quaker potash maker from Philadelphia — not an aristocrat, not a courtier, not a man of connections. He invented an improved process for making potash and pearl ash, essential ingredients in soap, glass, fabric dye, and gunpowder. On July 31, 1790, he walked out of the patent process with the first patent in American history, signed by President George Washington and countersigned by Secretary of State Thomas Jefferson. Jefferson personally reviewed the application.
In 1957, a crew demolishing a building in Castleton, Vermont, found a tin box inside a chimney wall. Inside was a patent licensing agreement from 1791 — Hopkins licensing his invention to a local businessman named Eli Cogswell. It is the first known patent licensing document in American history. It was preserved by the Smithsonian in 2019.
Source: USPTO Milestones · uspto.gov/patents/milestones → · Smithsonian Lemelson Center · invention.si.edu → · National Archives · govinfo.gov →
Evans was a Delaware mechanic who spent years before the patent system existed watching other millers copy his automated flour mill design with no legal recourse. His mill — the world's first automated production line — processed 300 bushels of grain per hour with a single worker instead of five. It required no human intervention except to start and stop it. In 1790 he received the third patent in American history, signed by Jefferson.
Washington licensed the Evans system for his mill at Mount Vernon within a year of signing the patent. Jefferson licensed it for Monticello. The President and the Secretary of State — the two men who had just signed Evans's patent — became his first licensees. Evans himself spent years fighting patent infringers in court and wrote bitterly that he had been "left in poverty at the age of 50, with a large family." The system protected his right. Enforcement was a different matter.
Source: Mount Vernon — mountvernon.org/oliver-evans-systems → · American Society of Mechanical Engineers · · Linda Hall Library ·
Whitney was a Massachusetts-born Yale graduate working as a tutor on a Georgia plantation when he invented the cotton gin — a device that separated cotton fiber from seed fifty times faster than by hand. He patented it in March 1794. Within years, cotton production was doubling each decade. By the Civil War, the United States supplied three-quarters of the world's cotton.
Whitney himself was nearly bankrupted by widespread patent infringement. Every cotton planter in the South copied his design. He spent years in litigation and Congress refused to renew his patent in 1812. The system protected his right in law. Enforcement failed him in practice. He turned to manufacturing muskets — and in doing so, helped develop the American system of interchangeable parts, another economic transformation.
The full truth of the cotton gin must be stated plainly. The economic explosion it produced was built on enslaved labor. The gin reduced the labor required to process cotton — but it dramatically increased the demand for enslaved people to plant and harvest it. The patent system protected Whitney's invention. That invention accelerated an institution that Episodes 02 and 02B document in full. Both facts are in the record. Neither cancels the other.
Source: National Archives — Milestone Documents · archives.gov/milestone-documents/patent-for-cotton-gin → · Bill of Rights Institute · archives.gov →
Jefferson was Secretary of State and sat on the three-person Patent Board that reviewed every application under the 1790 Act. He personally examined each submission for novelty and utility. He approved the first patent in American history. He approved the third. He signed both. He also became a licensee of both — installing Evans's automated system at Monticello's mill. And in 1813, long after his time on the patent board, he wrote a letter addressing the philosophy of intellectual property directly.
Source: Jefferson to McPherson, August 13, 1813 · founders.archives.gov/documents/Jefferson/03-06-02-0322 →
Twenty-three years after reviewing the first patent application, Jefferson wrote a letter to a man named Isaac McPherson who was asking about a disputed patent case. What Jefferson wrote in response became the clearest statement on intellectual property in the founding era — and one of the most quoted passages in the history of American patent law. The full letter is at Founders Online.
Jefferson begins by dismissing the idea that inventors have a natural, inheritable right to their inventions — an important precision, because it grounds the patent system not in natural right but in social utility. Then he makes the argument that has been cited in American courts ever since:
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it."
Then the candle flame — the image that has been quoted in patent law decisions for two centuries:
"He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point."
Jefferson then explains why, given all of this, patents exist at all: because even though ideas by nature belong to everyone, society has an interest in creating temporary incentives for inventors to develop and share useful things. The patent is not a natural right. It is a social bargain — temporary exclusivity in exchange for public disclosure. The inventor tells the world how it works. The world lets him profit from it for a limited time. Then the knowledge belongs to everyone.
"Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body."
Source: Jefferson to Isaac McPherson, August 13, 1813 · Founders Online · National Archives · founders.archives.gov/documents/Jefferson/03-06-02-0322 → · The letter addresses the nature of patent rights directly. Aside from Madison's brief comments in Federalist No. 43, no other framer offered any explanation of the patent clause.
The McPherson letter is not a famous document outside legal circles. Inside them, it has been cited by the Supreme Court and in countless patent decisions for over two centuries. Jefferson frames the entire patent debate in one letter, written on a hot August day in 1813, to a man most people have never heard of. The candle flame image — he who lights his taper at mine receives light without darkening me — is still the clearest statement of why intellectual property is simultaneously a social good and a potential tool of monopoly abuse. The tension he identifies in 1813 is the same tension in every patent dispute today.
The connection between the patent system and American economic development is documented in the patent records themselves. The USPTO has published its complete milestone history. The numbers tell the story without editorial comment.
The advancement of Agriculture, commerce and Manufactures, by all proper means, will not, I trust, need recommendation. But I cannot forbear intimating to you the expediency of giving effectual encouragement as well to the introduction of new and useful inventions from abroad, as to the exertion of skill and genius in producing them at home.
Washington called for a patent system in his very first address to Congress. Congress responded with the Patent Act of 1790 — the third major act it passed. The first patent was granted that July. Within a decade, American inventors were filing hundreds of applications. Within a generation, the American patent system was producing technological innovation at a rate that no other country matched. By 1870 — eighty years after the first patent — the United States was the world's leading manufacturing nation. The patent system did not cause that alone. But it was the legal foundation without which it could not have happened.
The specific mechanism: the patent required public disclosure. To receive a patent, an inventor had to file a specification describing exactly how his invention worked. That specification was public. Other inventors could read it, build on it, improve it — and file their own patents for the improvements. The system created a documented, public record of technological knowledge that compounded over time. Each patent was a building block that the next inventor could use. The American industrial revolution was not just a product of individual genius. It was a product of a legal system that made individual genius publicly available and economically rewarded at the same time.