Today in History: Snapshots in Time of Developments in Intellectual Property

September 5, 1787: No Drama Here! The Dullest of Constitutional Provisions Facilitates Broadway Blockbusters  

On this day in 1787, the clause in the United States Constitution conferring upon Congress the power to grant patents and copyright was adopted by the Constitutional Convention in Philadelphia. The inclusion of this clause in the constitutional document was fairly uncontroversial. No fodder for a Broadway musical here!   

The adoption of this provision was essentially a nonevent because, by 1787, most citizens and certainly the Convention delegates were familiar with the concept of copyright and patent rights. Although no federal laws existed, the 13 states of the Confederation already had individual (and differing) copyright laws. Many also had rudimentary patent systems modelled on the English system whereby protection of an innovation was given by the government upon an individual’s request and took the form of a private bill or legislation. In 1787, it was accepted that limited copyright and patent protections promoted general fairness, and, more importantly to the Delegates, economic development.   

By allocating the power to grant copyrights and patents to the Congress, the Convention Delegates were signaling a desire to create a uniform system for the granting of patents and copyrights across the states to promote arts and innovation and, indirectly, a robust economic commerce of intellectual property. Creators of innovations and artistic works have robust incentive to invest in the development and promotion of the creations, if they know the creations are protectable and consequently can be used to drive personal and community economic advancement.  

Want to find out more about the Constitution Convention or copyright and patents? Visit Philadelphia’s Independence Hall for the former, ask us for the latter! 

September 3, 1939: War, Death, & Copyright

On this day in 1939, France, the United Kingdom, New Zealand and Australia declared war on Germany after the early morning invasion of Poland by Germany. 

Did you know that the tumultuous European conflicts of the 20th century, including WWI, had profound effects on France and Russia – so much so that their copyright laws encode specific provisions attempting to address the experiences of creators and authors during the wars?  

Copyright is the right of an author or creator to control the copying and publishing of her literary or artistic works. In most countries, other than the United States, the term of protection afforded under a copyright for a work published in a creator’s lifetime is measured from the date of the creator’s death, not the date the work is created or published. 

In these jurisdictions, the term of copyright for traditional literary or artistic works is the lifetime of the creator plus an additional 50 to 70 years. When this term expires, the protected work falls into the public domain and may be lawfully reproduced by anyone. 

In France and Russia, however, the conflicts and political unrest of 20th century gave rise to peculiar copyright extensions and extinguishments. In France, if a creator is considered to have been “mort pour la France” (died in active service or from an illness or injury received in the service of France), copyright protection for works made during their lifetime is extended an additional 30 years. Beneficiaries of this law include Irène Némirovsky (“Suite Française”), Antoine de Saint-Exupéry (“Le Petit Prince”) and Guillaume Apollinaire (“Alcools”). 

In Russia, the law pertaining to copyright term mirrors the long-term political instability of the times. 

For example, any copyright that came into existence before the October Revolution (November 7th, 1917) is considered extinguished, even if the creator was alive after that date. 

Any person who fought or worked on behalf of Russia during the “war of 1941-1945”, is provided a copyright term extension of 4 years over the regular copyright term of life plus 70 years. 

Any creator who was unlawfully prosecuted as a criminal by Stalin (therefore losing her copyrights) and was subsequently deemed “rehabilitated” by the post 1953 government is granted a copyright with a duration of 74 years beginning at the date of rehabilitation, not at the date of his or her death.  

Would you like to learn more obscure Russian copyright facts or how to protect your artistic work internationally? Ask us!


September 1, 1818: A Bloody (Patent) Application: Medical Procedures and Patents 

On this day in 1818, James Blundell carried out the first successful human-to-human blood transfusion for the treatment of a patient suffering from postpartum hemorrhage. Between 1825 and 1830, it is reported that Dr. Blundell performed at least 10 more successful transfusions and developed various specialized medical instruments for the transfusion procedures.

In the U.S., medical procedures are patentable. However, while U.S. law recognizes that a medical procedure patent claim may be infringed by a medical practitioner, the law prohibits the enforcement of any remedy (e.g., injunction, money damages) against such medical practitioner or related health care entities. 

So, how can a medical pioneer like Dr. Blundell meaningfully protect his innovations? 

The US law contains two loopholes — if, in the practice of the medical procedure, the same medical practitioner or related health care entity uses:

  1. a patented tool, device, or “composition” (e.g., drug or biologic); or
  2. a process that includes or is covered by a “biotechnology patent,” e.g., the process includes a biopsy which cells are evaluated by a process in a biotechnology patent, the medical practitioner or related health care entity is subject to the traditional damages available for patent infringement. 

Dr. Blundell then, would have been able to protect his process indirectly, via patent claim coverage of his specialized medical instruments that were used in the procedures.

Want to learn more about 19th Century blood transfusion technology or the patenting of medical procedures and devices? Ask us!

July 16, 1799: Napoleon Stumbles Across the Rosetta Stone

On this day in 1799, Napoleon’s soldiers were digging up old buildings stones to be recycled to fortify a fort in Rashid (then, Rosetta) in the Nile delta. Luckily, the office in charge of the dig was well versed in languages and realized the importance of the muddy slab almost immediately. The stone contains the same text repeated in three scripts or languages, hieroglyphs (official Egyptian script), Demotic (quotidian Egyptian script), and Ancient Greek. Because scholars could still read Ancient Greek, a comparison of the texts it allowed them to decipher hieroglyphics and demotic scripts, making the writings of the ancient Egyptians readable by modern scholars. 

Over 50 trademarks that include “Rosetta” or “Rosetta Stone” are registered at the US Patent and Trademark Office. Most of these are for language-, translation-, puzzle- or cryptography-related products and services. The trademark laws categorize such marks as “suggestive” for they merely hint at or “suggest” the characteristics of the underlying goods or services but do not describe them outright. Unlike simple descriptive marks, e.g., “Translation Services” for translation services, suggestive marks are considered by the USPTO to be inherently distinctive and do not require proof of acquired distinctiveness for registration on the USPTO Principal Register. Want to learn more about Napoleon’s Egyptian campaign or how to develop a strong trademark?  Ask us!

July 14, 1885: First Free African-American Woman Obtains Patent Grant

On this day in 1885, United States Patent No. 322,177 for “Cabinet Bed” issued to Sarah E. Goode of Chicago, Illinois, the first patent known to be awarded to an inventor that was a free black woman.

Since 1977, the number of women inventors has increased four-fold.  However, as of 2019, only 15% of inventors listed on patents are women, and no data is available on minority women. Want to learn more about how to successfully navigate the patent process regardless of gender, religion, race or national origin? Ask us!

July 12, 1493:  Publication of First “Pirated” Book

On this day in 1493, the book The Nuremberg Chronicles by Hartmann Schedel, a physician and scientist, was published in Nuremberg. The Chronicles is a comprehensive world history including detailed drawings and vivid and compelling descriptions of natural phenomena, historical and political events and biographies of notable people spanning pre-Christian times up to about the early 1400s. The book proved to be highly popular among readers – a true early Renaissance “best seller.” Indeed, demand was so great that the authorized publisher, Anthony Koberger, published five editions in eight years. 

Seeking to ride on the coattails of this success, competing publishers obtained copies of the Koberger Chronicles and reproduced and sold their own versions, making The Nuremberg Chronicles likely the first book ever to be pirated on a commercially significant scale. So many pirated versions were printed that even now, about 500 years later, many still exist. A counterfeit version published by rival publisher Hans Schönsperger is now in the Special Collection of the University of Rochester. 

In 1493, neither Schedel nor Koberger had any recourse against the book pirates of the Chronicles because no copyright law existed.  However, did you know that should this same situation arise today, Schedel’s book would be protected from copying under US and International Copyright laws, even if the book was not formally registered at the US Copyright Office?   

US Copyright laws protect from unauthorized copying all “original works of authorship” receiving the right to make and sell copies, to create derivative works and to perform or display her works publicly solely to the author or third parties whom she has authorized. Protectable works include: literary, musical, and dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, audio-visual works, sound recordings, derivative works, compilations, web pages, and architectural works. 

Want to learn more about the history of printing in Germany or Copyright law?  Ask us!

July 9, 1885 Louis Pasteur develops the first attenuated vaccine for people

On this day in 1885, Louis Pasteur reported his success in developing the first attenuated vaccine for humans. Pasteur’s successful concoction was an anti-rabies vaccine derived from the spinal fluid of a rabbit who had suffered a rabies infection 15 days prior to Pasteur’s patient. Science now understands that rabies is caused by a virus (Rabies lyssavirus). However, at the time Pasteur invented his attenuated vaccine, he knew neither what a “virus” was nor how his vaccine worked. (The existence of the infectious agent we now call a “virus” was not elucidated until 1892, and, even today while we think we appreciate the general principle by which vaccines work, new information is still discovered every day.)

Did you know that to obtain a US patent, an inventor does not need to know, prove, or understand how or why her invention works? In the US, an invention may be eligible for patent if the invention can be described sufficient detail such that a person in the same field would understand how to make it and how to use it, including in some cases, that is it effective.  These legal requirements for patentability are called the Written Description Requirement and the Enablement Requirement.  Thus, if Louis or his patent lawyer could describe in detail how he made his anti- rabies concoction, and how he administered it to the cured rabies patient, the invention would satisfy the Written Description Requirement and the Enablement Requirement, even though Louis did not know what a rabies virus was or how his concoction enabled the patient’s immune system to defeat it. 

Want to see actual laboratory flasks that still contain Louis’s anti-rabies concoction as he left them in 1885 or to learn about the Written Description Requirement and the Enablement Requirement for patents?  For the former, visit the Musée Pasteur, 25 Rue du Docteur Roux, Paris — for the latter, ask us

July 7, 1884: Birth of the Global IP Portfolio

On this day in 1884, the first version of an international treaty called the “Paris Convention for the Protection of Industrial Property” became effective. The Paris Convention was the first international organized effort to afford creators of intellectual property, including patents, trademarks and service marks, industrial designs, utility models, and geographical indication, a less logistically cumbersome way to obtain protection in countries other than their home country. 

The innovative aspect of the Paris Convention was the creation of a “Priority Right” conferring upon an applicant from one contracting State the right to rely upon her first filing date (in one of the other contracting States) as the effective filing date in all other member states. This concept, radical at the time, made the possibility of a global-spanning IP portfolio a realistic option for most companies and even for many individual inventors, and arguably underpins the global economy we live in today. 

In 1884, the Paris Convention had 11 members states. Now, with 177 member states, the Paris Convention is still the most commonly relied upon intellectual property treaty in the international arena. 

Want to learn more about how IP protections support the global economy or how the Paris Convention can work for you? Ask us!

July 4, 1776: Words that Matter

On this day in 1776, it was a bright, sunny morning in Philadelphia when, after three days of debate, the Second Continental Congress voted to formally adopt the Declaration of Independence. The handwritten fair copy was signed by the President of the Congress, John Hancock, and attested to by the Secretary of Congress, Charles Thomson. Late in the day, Hancock ordered Philadelphia printer John Dunlap to print copies of the declaration. Dunlap stayed up all night to print about 200 copies. The Declaration was first read out publicly on July 8, 1776 in Philadelphia, in front of the State House, in Easton, Pennsylvania, in Centre Square, and in Trenton, New Jersey, on the steps of the steps of the Hunterdon County Courthouse.

By issuing the Declaration, the Second Continental Congress’ primary aim was to irrefutably declare its separation from a government it considered tyrannical and despotic and its intention to establish a new democratic government whose power was derived solely from the consent of the governed, and which therefore could not abridge or abolish the rights of its people. The Second Continental Congress wrote:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

Even though it was only made of words, the Declaration was powerful!

These words were a crime. Participating in the drafting or the dissemination of the Declaration was an act of Treason against the King, punishable by death.

These words were a rallying cry — Prior to the Declaration, the attitudes of the colonies and the colonists towards the King were undefined. Many were angry at the poor treatment being delivered by the King’s government but were unsure whether reconciliation or separation was the better option. The words of the Declaration provided clarity to the Patriots’ causes and moved many undecided colonists to their side.

These words are our country’s mission. Since 1776, the words of the Declaration’s preamble have been held in hearts of most Americans as our country’s stated aspiration, gradually and still imperfectly achieved.

Today especially, we consider the blessings and privileges the words of the Declaration have afford us and, more importantly, how we, through our own words and deeds, can help to ensure all our fellow Americans may be included in these same experiences.

Click to read the Declaration of Independence.

July 3, 1952: The Constitution of Puerto Rico Approved by US Congress

On this day, the 82nd US Congress ratified the Puerto Rican constitution with a few amendments. The Puerto Rican Constitution contains provisions detailing the structure of the government, the function of several of its institutions and an extensive bill of rights, including an specific prohibition against all discrimination on the basis of “race, color, sex, birth, social origin or condition, or political or religious ideas,” the right to life (forbidding capital punishment) and an express right to privacy and dignity.

Puerto Rico is not a U.S. state; however, did you know that every granted United States Patent, US registered trademark and US register copyright covers and is enforceable in the federal courts of U.S.-held territories, including Puerto Rico, American Samoa, Guam, Northern Mariana Islands and US Virgin Islands? In the first 6 months of 2020, 17 intellectual property litigations have been filed in Puerto Rico Federal District Court. 

Want to learn more about the Puerto Rican Bill of Rights or U.S. intellectual property protection in US territories?  Ask us!

July 2, 1937: Aviator Amelia Earhart Goes Missing

On this day, the aircraft carrying Amelia Earhart is reported missing near Howland Island in the Pacific. Before mysteriously disappearing, Earhart was and remains well known for being the first female aviator to fly solo across the Atlantic Ocean. Did you know that Earhart also holds the record for being the first person of any gender to cross the continental US piloting autogiro? 

From the 1920s to the ‘40s autogiro technology was at the cutting edge of aviation and the subject of 100s of US utility patents, at least 270 of which were owned by the Autogiro Company of America (“ACA”). Indeed, ACA ignited the first “patent war” when Harold Pitcairn of ACA sued the US Government for patent infringement of as many as 32 ACA patents for the government’s use of the patented technology in US helicopters. Initiated in 1951, Autogiro Company of America v. U.S. is the longest patent litigation in US history, finally ending in October 1978.    

Want to learn more about autogiros or patent litigation? Ask us!

July 1, 1806:  Michael Keen displayed the first cultivated strawberry in London.

On this day, a market gardener Michael Keen raised the first cultivated strawberries, “Keen’s Imperials.” Keen developed his Imperial to be quick growing and have a strong stalk and seeds that extended from the surface of the fruit to protect against bruising during transport. Sadly, contemporaneous critics decried the Imperial as “flavorless.” Nonetheless, cultivated strawberries have become the most commercially significant fruit in the global economy. 

In 1806 England, Keen did not have the option to protect his fruity IP. However, did you know that in most modern commercial countries, cultivated plants are eligible for varied and robust Intellectual Property Protections? For example, the US, plants can be protected by utility patents (new varieties, seeds, etc.), Plant Patents (asexually propagated plants) and Plant Variety Protection Certificates (sexually reproduced or tuber-propagated plants). 

Want to learn more about global strawberry commerce or IP protection for plants?  Ask us!

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