Patents – What the Dickens did Brunel think of them?

This year HLK turns 175 years old. It was formed in 1850 at the height of the Industrial Revolution, just a year before the Great Exhibition of 1851, which was attended by all the great and the good, including Queen Victoria, Charles Dickens, and one of the great inventors of the time, Isambard Kingdom Brunel. This led me to wonder what Brunel, a local hero in my home city of Bristol, thought of intellectual property. Surely he would have protected some of his many inventions and been an advocate for patents? I did some research and the story is not what you would expect…

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Brunel was a titan of Victorian innovation. He was Chief Engineer for the Great Western Railway, designed many bridges, including the Clifton Suspension Bridge, and was the driving force behind many of the earliest steamships. Indeed, the SS Great Britain – which was launched from Bristol in 1843 and now resides as a museum in its docks – was a world first in being a steel ship driven by screw propeller. Compared to a wooden paddle steamer, which was then the more common type of ship, the greater capacity of the steel hull and increased speed allowed by the propeller revolutionised Atlantic crossings.

Patents were popular during the Industrial Revolution, and there had been a patent system in the UK since the 1600s. From this, you might think, as I naively did, that Brunel would have many patents to his name. In fact, he has none. When you dig deeper, you find that he was not just ambivalent toward the patent system, he thought it was ‘evil’, and lobbied parliament for its abolition. In contrast, his father, Marc Brunel, also a serial inventor, filed many patents. These include one for a device that enabled safe tunnelling through the ground below a body of water. This device led to the first tunnel under the Thames – indeed, the first underwater tunnel anywhere in the world – being opened in 1843. Marc Brunel was knighted for this achievement and it is still in use today – it now forms part of the London underground network, connecting Rotherhithe to Wapping. Marc Brunel’s other inventions included machines for making ships’ blocks (pulleys), which could produce them many times faster than you could manually and with higher accuracy – Marc convinced the British government of the utility of the machines and they put him in charge of installing 43 of them in Portsmouth Dockyard. He also patented machines for mass manufacturing various other items, such as boots, knitted stockings and timber planks. Another of Marc’s patented inventions was a particular type of steam engine that, perhaps ironically, his son Isambard used on the SS Great Britain.

So, with his father embracing the patent system, what was it that Isambard disliked about it so much? In short, everything. In a memorandum to Parliament in 1851, he said ‘it impedes everything it means to encourage’, ‘ruins the class it professes to protect’, and ‘is productive of immense mischief to the public’. He explained that his view was not formed on the basis of a theory, but rather from his practical experience of 28 years of ‘being in the midst of everything connected with inventions, and in constant contact with patent laws’. One of his problems with the system was that it was, in his eyes, allowing patents to be granted for inventions that simply were not new or inventive: “nine hundred and ninety nine out of a thousand are not new discoveries, but slight modifications of what is already in use” – they are “judicious applications of known principles and of well-known and common parts of machinery, or of common substances, very often mere revivals or re-inventions of something which had many times before previously been thought of”.

He also believed patents prevented collaboration between inventors:

“in the present state of things, if a man thinks he has invented something, he immediately dreams of a patent, and of a fortune to be made by it. If he is a rich man he loses his money, and no great harm is done; but if he is a workman, and a poor man, his thoughts are divided between scheming at his machine in secret, and scheming at the mode of raising money to carry it out. He does not consult his fellow-workmen, or men engaged in the same pursuits, as to whether the same thing had ever been tried, why it failed, what the difficulties are, or (what is most probable) whether something better is not already known, and waiting only the demand.”

Isambard was also of the view that inventors sometimes modified their innovations purely to make them sufficiently different to obtain a patent, but that would of course not generally produce the most effective invention. Essentially, he took a dim view of inventors who placed a higher priority on obtaining a patent than on the quality of their innovation.

But probably his largest frustration of patents was their supposed stifling effect on innovation:

“it is almost now to introduce the slightest improvement in anything without infringing on some patent, and exposing oneself to be proceeded against by some patentee” and even patentees, in his view, did not want to improve their own inventions “for fear of injuring [their] patent”.

When you look into Isambard’s personal history, you realise that there may be other underlying reasons for his reaction to patents. His father Marc, while knighted for his innovative contributions, nevertheless experienced considerable hardship at times. He was imprisoned for a few months for bankruptcy in 1821, following a fire at his sawmill factory and the financial mismanagement of his business partners. Isambard would have been 15 years old at the time – a formative age. Brunel never linked the two in his writings, but seeing his father in prison, despite his efforts in inventing and patenting, may well have made him question the whole system.

The system disliked by Brunel was that of the early 1800s, antiquated and bureaucratic, and lacking any sort of patent office as we know it. Patents were obtained by applying via a Kafka-esque system through various Whitehall offices, and there was no or little examination of whether an invention was actually new. The only way patents were tested for their quality was through the vast expense of going to court. The Victorian patent application system became so notorious that it was even lampooned by Charles Dickens. His novel Little Dorrit includes a subplot about an inventor, Daniel Doyce, endlessly trying, and failing, to get information out of a “Circumlocution Office”, headed up by the fabulously named Mr. Tite Barnacle. It is no wonder that Brunel and others were so dissatisfied with it.

Parliament did not of course abolish the patent system – they modernised it, setting up a patent office in 1852 with examiners to check whether inventions were new. A few years later in 1883, the international nature of commerce and invention led to the Paris Convention for the Protection of Industrial Property being signed between an initial 11 countries (there are now 179 signatories). This treaty established a set of ground rules, such as equal treatment, regardless of nationality, and the system of priority, which we now take for granted. For non-patent/trademark attorneys reading this article, the ‘priority’ system is a way of establishing a filing date in one country for a first application, with this filing date becoming effective in any other country, as long as you file within a year – essentially avoiding having to file many patents/trade marks at the same day in many different countries s so they all have the same filing date. And since then, the intellectual property system has continued to modernise, just as society and technology have continued to develop.

My musings led me to wonder what Brunel might think were he to wander around a modern Patent Office today, like the Intellectual Property Office UK in Newport, the European Patent Office in Munich or the USPTO in Alexandria – what would he make of the modern patent system? Would he still call for its abolition? Well, aside from being a little disgruntled that he couldn’t smoke his cigar inside the buildings, I would like to believe he would be pretty impressed. He really didn’t like patents being granted for things that were already known or obvious, and the difficulty in the 1800s was that there was nobody charged with the task of searching the literature, and, even if they had been, it would have been a long, laborious task. In contrast, I think he would marvel at the calibre of the patent examiners, all of whom have at least a first degree in science or engineering, and many have doctorates. He would be amazed at the databases at their fingertips, which allow the examiners to search millions of publications in seconds. In chatting to the examiners, he would be fascinated at the possibilities that A.I. offers in making their searching and examining even more efficient in the future. I believe he would also be impressed with the rigour with which the examination process is carried out, only allowing patents to be granted for inventions that truly, in the Examiner’s eyes, are new and not simply an obvious step from the prior art. When it comes to the European Patent Office, I believe he would be a fan of the problem and solution approach – after all, he was very clear that the purpose of any innovation is to solve problems. The structured approach, and reasonably consistent outcomes, would give him far more certainty than the system of the 1800s. He would also be pleased, I think, to see a reliance in the chemical and biological fields of having to show experimentally that your invention is an improvement over the ‘closest prior art’ – Brunel thought an invention to be pretty pointless if it was not better than what has gone before.

Another little known fact about Brunel was that he was a gifted linguist – he spoke English, French and German – by chance the three official languages of the EPO. His fluency in French is no doubt because his father was from France. And his German skills were complimented after a visit by the King of Saxony to the SS Great Britain, just before its launch. So if he happened to wander into a hearing in the EPO with multiple languages being spoken, I think he would have thought the translators and board members were magnificent.

And finally, if Brunel went to the US PTO in Alexandria and the wandered around the National Inventors Hall of Fame, reading about the lives and creations of over 600 inventors, I think that even he may admit that perhaps innovation has continued apace over the past 175 years, and that patents, rather than being an impediment, may have their place in encouraging technological advancement.

And on that note, I wish everyone at HLK a Happy 175th Birthday, and Brunel, too – he would have been 219 earlier this month!

References and further reading

The Iron Ship, The Story of Brunel’s SS Great Britain by Ewan Corlettm published by Park Lane Press Ltd, 2012

The Life of Isambard Kingdom Brunel, Civil Engineer (1870), a biography written by his son, Isambard Brunel, published by David & Charles (Publishers) Limited, 1971 (later editions are available)

The Greater Genius? A Biography of Marc Isambard Brunel, by Harold Bagust, published by Ian Allan in 2006

Dickens and Patent Reform in the 1850s – an article by Bronwyn H. Hall, available here: Microsoft Word – Dickens_Little_Dorrit_patent_reform_BHH.docx

But if you really want to know about Brunel, his life and innovations, I encourage you to visit the fascinating and award-winning SS Great Britain in Bristol, and spend a glorious few hours being taken back to 1843.