Patents over military equipment: shifting uses for shifting modes of governance

ABSTRACT

Patents for invention have a history that goes back centuries in England. As a result, they can be used to interrogate changes in the practices of governance that occurred over that time (and further back). Using the ideas of Michel Foucault, that described the conditions of possibility for ‘governmentality’, an analysis of patents over military equipment allows a reconception of Foucault’s modes of governance. Military patents facilitate the goals of research, given the centrality of the monopolies of the use of force in the modern state. The revised model presented here indicates that over the millennium governance shifted from feudal, to the governmentalist, via a period that was neither fully feudal, nor fully governmental.

Acknowledgements

I would like to thank Gary Wickham for his comments on the draft, Ian Cook for preparatory conversations about the theory, the Melbourne Law School Library Research Service for its assistance and, finally, the attendees at the ISHTIP 2017 workshop in Toronto for their invaluable feedback.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 This is not to say that military patents were the dominant form of inventions in either period; they, instead, provide a useful lens through which to view the forms of governance of both times.

2 In particular, Foucault (1991) and the literature that has built up around these ideas.

3 Weber (1991), p. 78.

4 Hobbes (1947), p. 92.

5 It should be noted that the research is looking at the mechanics of the interaction between military patents and the State. As such, there will be no interrogation of the concept of sovereignty itself. For a critique of Foucault in this area, see Wickham (2006).

6 Davies (1932), p. 396.

7 Fox (1947), p. 125.

8 Hulme (1896), p. 145.

9 There was also a 1589 patent for the digging for saltpetre: Hulme (1900), p. 49.

10 Hulme (1896), p. 147.

11 Hulme (1900), p. 47.

12 Hulme (1900), p. 48.

13 Hulme (1900), p. 50.

14 Hulme (1900), p. 51.

15 To Wolfen and Miller for a technique that was new to England: Patent 4 in Woodcroft (1969).

16 Woodcroft (1969), Patent 5.

17 One to Eland for the manufacture of lead, and one to Gomeldon for the manufacture of furnaces for melting lead: Woodcroft (1969), Patents 22 and 26 respectively.

18 As evidence of the continued granting of patents under this exception, there was a patent to Ramsey that covered, inter alia, a technique ‘to multiply and make saltpetre in an open field of four acres of ground sufficient to serve all His Majesty’s dominions’: Woodcroft (1969), Patent 50.

19 Kyle (1998), p. 214.

20 The policy goals of the early modern system will be discussed below.

21 Davies (1956), p. 25.

22 According to Unwin, one of the results of Elizabethan practice was akin to the establishment of a “Civil Service”: the ‘patentees and monopolists undertook … to perform the functions now entrusted to the Home Office, the Board of Trade, the departments of Customs and Inland Revenue’: Unwin (1927), p. 326.

23 Fox (1947), p. 182. He specifically argued that the 1617 patent for the ‘manufacture of gold and silver thread show[s] an endeavour on their face to protect the purchaser from faulty workmanship’.

24 Quoted in Yandle (1993), p. 267.

25 Though drinking glasses and glass windows were limited to the wealthier households in the early modern period.

26 Neale (2005), p. 81.

27 Rowse (2003), p. 238. Prior to England’s military support of the Protestants in the Netherlands and Mary’s execution in 1587, the greater tension was with France. Regaining Calais, for example, was the ‘chief aim’ of Elizabeth’s foreign policy in the first decade of her reign: at p. 330.

28 See, generally, Wernham (1951a); and Wernham (1951b).

29 Willson (1971), p. 161.

30 There was no equivalent provision in the Patent Law Amendment Act 1852.

31 It may be noted that this provision is a duplication of the procedure as set out in the Patents for Inventions (Munitions of War) Act 1859; though Edmunds said it was ‘substantially a re-enactment’: Edmunds (1897), p. 637. For a history of the 1859 Act, see O’Dell (1994), Ch. 3. Given it was less than 25 years between the 1859 ad the 1883 Acts (in an analysis that spans several hundred years), there is little value in discussing the transplanted provisions separately from the other practices of governance that were confirmed in the later Act.

32 O’Dell states that only three patents were kept secret in first eight years of the operation of the 1883 Act: O’Dell (1994), p. 43. He does not mention the payment of any consideration. O’Dell does, however, refer to an 1859 patent that the War Office acquired the rights to in which a royalty was paid to the inventor: at p. 23. It is not, however, clear that the acquisition was under the 1859 Act.

33 Johnson and Johnson (1890), p. 175. This overview was all that was said about s. 44. Other treatises, such as Terrell’s, made no reference to the provision at all.

34 Perhaps given the secrecy around the assignments, it is not clear how many patents were assigned under s. 44.

35 For a more complete understanding of the nineteenth-century reforms, see Dent (2016).

36 Section 4 of Lord Brougham’s Act 1835 enabled a patentee to file a petition with the Privy Council to get an extension on the life of the patent in order to, in effect, extract more profit from the working of the patent. In a ruling under the provision, the Privy Council stated that ‘it is to be observed that [the] profit is not perhaps very much greater, if at all greater, than the ordinary profits on stock to that amount, employed without the privileges and extra profits of a monopoly’ – this was part of the justification for a six year extension to a patent: Re Russell’s Patent (1838) 2 HPC 328 at 332.

37 It was not until the twentieth century that the legislation explicitly engaged with the proprietary nature of granted patents, see for example, Patents Act 1949, s. 74(4).

38 Hesse v Stevenson (1803) 3 Bos. & Pul. 565 at 578.

39 Specifications were introduced into the system, as a result of a bureaucratic decision, in the eighteenth century – with the assessment that, after Liardet v Johnson, the ‘specification would be officially enshrined by the law courts as a requirement for a valid patent’: Mossoff (2001), p. 1287.

40 It was Terrell who first used the phrase ‘a person skilled in the art’ in his treatise produced just after the passing of the 1883 Act: Terrell (1884), p. 65. Earlier iterations include: ‘an ordinary tradesman’ (Rowntree’s Case (1800) 1 HPC 421 at 421); ‘a skilful mechanic’ (Bloxam v Elsee (1825) 1 Car & P 558 at 564); and a ‘workman of ordinary skill and information on the subject’ (Foxwell v Bostock (1864) 4 De G J & S 298 at 310).

41 These examiners did not consider the novelty of the inventions, instead they ensured that the administrative requirements of the applications were complied with. It was not until 1905, after the Patents Act 1902, that there was examination into the novelty of patent applications by examiners.

42 For a discussion of the British mindset of expansionism, see Howard (1981).

43 Or, as it has been described, ‘the Germans had egotistically upset the balance of power in 1870’: Wawro (2000), p. 124.

44 The Naval Artillery Volunteer Act 1873; the Army Act 1881; the Regulation of the Forces Act 1881; and the Militia Act 1882.

45 See, for example, ‘The Real Defence of England’ The Pall Mall Gazette, September 16, 1870; ‘Threatened Prussian Invasion of England’ Reynolds's Newspaper, January 8, 1871; ‘The Defence of Great Britain’ The Morning Post January 22, 1876; p. 6; Issue 32314; ‘Maritime Defence of England’ The Belfast News-Letter June 20, 1876, Issue 19001; ‘How England might be Invaded’ The Penny Illustrated Paper and Illustrated Times, February 17, 1877; and ‘Invasion of England and Defence of London’ The Lancaster Gazette and General Advertiser for Lancashire, Westmorland, and Yorkshire June 25, 1879; Issue 4940.

46 See, generally, Paris (2000), in particular, Ch. 1.

47 United Kingdom, Parliamentary Debates, House of Commons, 16 April 1883, Vol. 278, 384 (Mr Carbutt).

48 Foucault (1991), p. 103.

49 Tout (1967), Vol. 1, p. 137.

50 Holdsworth (1936), Vol. 2, p. 182.

51 Klitzke (1959), p. 616.

52 See, further, Harmer (1989).

53 van Caenegem (1959), p. 133.

54 Clanchy (1993), p. 220. Clanchy notes that some letters patent were written in English from the 1250s, particularly in circumstances where there was distrust in those who would translate the document from the official Latin to its addressees – ‘all the King’s subjects’: at p. 221.

55 Bloch (1962), p. xxiii.

56 In England, a ‘centralised feudalism was imported from the outside by the Norma conquerors … [However], ‘the Anglo-Saxon social formation … had been the most highly developed example in Europe of a potential “spontaneous” transition of a Germanic society to a feudal social formation’: Anderson (1996), p. 158.

57 The ‘Norman counts took a large part in the conquest of England and received a large part of the spoils’: Douglas (1964), p. 294.

58 For a more complete discussion of the ‘knight’s service’, see Pollock and Maitland (2010), Vol. 1, pp. 266–98.

59 Gillingham (2000), p. 187.

60 Plucknett (1960), p. 35.

61 In the late medieval land and titles (and, as a result, the capacity to raise an army) were also granted by letters patent – see, further, Dent (2021).

62 Foucault (1991), p. 104. For a legal history of the intersection of land, obligations arising from land and the law, Milsom (1976).

63 There was also the county court, the ecclesiastical court and the royal courts. For a more detailed description of all the courts, see Pollock and Maitland (2010), Ch. 3.

64 Cross (1932), p. 370.

65 Hanus (1968), p. 67.

66 Henry, for example, marched north to as a challenge to the claims of the Earl of York. The latter backed down: Warren (1977), p. 60.

67 Amt (1993), p. 187.

68 For Prestwich, ‘national defence … was not a major issue in 1181’, instead, the gathering of troops was ‘to improve local peacekeeping’: (1996), p. 121.

69 Dent (2021).

70 Wagner (1967), p. 25.

71 Expressed differently, arms are the seen as the ‘adornment of the nobility’: Keen (1965), p. 143.

72 Ashman (1988), p. 59. However, the ‘grants of arms by the English Crown are at all periods very rare’: Wagner (1956), p. 67.

73 Keen (1965), p. 130.

74 Squibb (1959), p. 16.

75 Walters notes the three distinguishable uses of the term in Foucault’s own work: Walters (2012), pp. 11–12. The use focused on in this article is the third, the ‘arts and techniques’ associated with a ‘liberal approach to governance’: at p. 12.

76 Miller and Rose (2008), pp. 17–8.

77 Foucault (1991), p. 102.

78 Foucault (2000), p. 341.

79 Foucault (2008), p. 226.

80 Frauley (2007), p. 625.

81 Note that seeing individuals as economic actors is a project distinct from critiquing the economy as a set of practices. Others have criticised Foucault’s lack of engagement with the latter: see, for example, Tellmann (2009).

82 Aston (1883), p. 8.

83 Re Russell’s Patent (1838) 2 HPC 328 at 332.

84 For Miller and Rose, one of the defining aspects of liberalism was a ‘new relation between government and knowledge’: (2008), p. 204.

85 The specification and the claims of the patent (required under the 1883 Act) may not have provided a perfect line of demarcation around the rights of the patentee; however, the register provided more precise information than was available under the earlier system of recording patents.

86 For a discussion of the role of expertise in governance, see, Johnson (1993).

87 Foster (1851), p. 242.

88 Dean (1999), p. 52.

89 The Act is silent as to how the Secretary of State would (a) become aware of the new technologies and (b) assess their value to the country’s war efforts. A governmentalist perspective would start from the assumption that expertise would be used; however, it is not clear whether that expertise would have been internal, or external, to the government.

90 By the middle of the twentieth century, the reference to military inventions and State intervention was limited to only one sub-section, amongst a number of other emergencies that the nation could face: Patents Act 1949, s. 49(1)(a) – noting that this Act was passed only four years after the end of the Second World War.

91 R v Arkwright (1785) 1 WPC 64 at 66.

92 The public access to the patent documents could also reflect utilitarian policies. For example, the Public Libraries Act 1850 may be seen to match utilitarian support for of the public education: see, for example, Black (1996), Ch. 3.

93 Foucault (1991), p. 102.

94 As per the above-mentioned quotes in Weber (1991), p. 78; and Hobbes (1947), p. 92.

95 Barua (1994), p. 613.

96 These forces were substantial. In 1844, there were an average of 5,034 European troops and 121,091 Bengali troops in the Bengali Presidency Army; there were 5,883 European and 64,482 Madras troops in the Madras Presidency Army; and 3,667 European and 49,875 Bombay troops in the Bombay Presidency Army: Sykes (1847), pp. 113–116.

97 Roy (2011), p. 196.

98 And, of course, there were further shifts – with the rise of ‘arms supply diplomacy’ (Tal (2006), p. 369) under later forms of governmentality, though there is not the need to discuss that here.

99 See, generally, Hannell (1989).

100 Deacon (2000), p. 131.

101 Note the media references (above n 45) to how this “problem” was part of the national debate.

102 Foucault considered problematisation, more expansively, as the ‘development of a domain of acts, practices and thoughts that seem … to pose problems for politics. For example, I don’t think that in regard to madness and mental illness there is any “politics” that can contain the just and definitive solution. But I think that in madness, in derangement, in behaviour problems, there are reasons for questioning politics; and politics must answer these questions, but it never answers them completely’: Foucault (1997), p. 114.

103 The Second Reading speech for the 1883 Act stated that there were four ‘objects of a good patent law … [1] the protection granted should give adequate protection to the inventor without creating an undue monopoly … [2] the cost of obtaining patents should not be so great as to put them out of the reach of any class of inventors … [3] the protection should be as real and as effectual as possible; and lastly, where litigation is inevitable, it should be both cheap and efficient’: United Kingdom, Parliamentary Debates, House of Commons, 16 April 1883, Vol. 278, 352–3 (Mr Chamberlain). These objects prioritise the financial interests of the patentees and not the societal interest in innovation.

104 See generally Dent (2016). This observation is unsurprising from a Foucauldian perspective. Read, for example, characterises Foucault’s understanding of classical liberalism in terms of its focus on ‘exchange, on what Adam Smith called mankind’s tendency to “barter, truck and exchange”’: Read (2009), p. 27.

105 Akin to the ‘practical invisibility’ of modern governance discussed by Hook (2007), p. 17.

106 Kyle (1998), p. 209.

107 The ‘granting of patents was, as a rule, prompted by the pecuniary interest either of the Crown or of the patentee’: Price (1913), p. 14.

108 It is noted that, for Foucault, homo œconomicus ‘appears in the eighteenth century’: Foucault (2008), p. 270.

109 Wernham (1951a), pp. 2–8. He also refers to the role of ‘private enterprise’ in its funding.

110 Rowse (2003), p. 139. Rowse notes, too, that other nobles provided troops as well. Further, Hughes highlights the role of volunteers in the English Civil War: Hughes (1985), p. 243. She also highlights that the Royalist troops had a ‘sense of personal duty to Charles’: at p, 242.

111 As last as 1743, ‘George II personally led the English and Hanoverian infantry to victory against the French at the Battle of Dettingen’: O’Gorman (1997), p. 88.

112 See, generally, Greenfeld (1992), Ch. 1.

113 For a discussion of the links between the early modern patent system and Protestantism, see Dent (2017).

114 For example, Dent (2006), p. 91.

115 Cowburn (1966), p. 59.

116 For a discussion of other social policies of the time, see Hindle (2002), pp. 34–6.

117 Klitzke, for example, refers to one to a Venetian by Henry VIII and one to a London merchant by Edward VI: Klitzke (1959), p. 629. He also refers to a couple examples of market protection offered to those who would now be seen as “skilled migrant” in the 14th and 15th centuries: at pp. 626–8.

118 Dent (2006), p. 72.

119 For a discussion of the meaning and context of the test, see Dent (2009).

120 See, further, Nachbar (2005).

121 Many mercantilists based their writings on their practical experiences as merchants. More specifically, Viner has argued, ‘pleas for special interests, whether open or disguised, constituted the bulk of the mercantilist literature’: quoted in Getz (1964), p. 70 n31.

122 Thomas Mun, a key mercantilist, was a director of the monopolist East India Company: Schaafsma (1997), p. 243.

123 That patentee could, as a result, be the target of a public display of retribution or punishment. As an example, Giles Mompesson, who held a number of regulatory patents, was investigated over abuses of his powers. His penalties included being ‘conducted along the Strand with his face to the horse's tail’ Oxford Dictionary of National Biography (2008). The use of public punishments is, of course, an example of pre-governmentalist practices of governance – note the case of regicide described in Foucault (1979), pp. 3–6.

124 For Supple, the ‘Tudor and Stuart governments directed their regulatory efforts to the maintenance of social order, public peace, national security and the achievement of economic prosperity’: Supple (1959), p. 226.

125 As an example that links the Crown, the courts and the facilitation of order – the ‘King’s prerogative over printing is necessary as to religion, conservation of the publique peace, and necessary to preserve good understanding between King and people’: Stationers v Patentees about the Printing of Roll’s Abridgment (1669) Carter 89 at 90.

126 Foucault (2008), p. 284.

127 Foucault notes, too, that the ‘art of government could only spread and develop in subtlety in an age of expansion, free from the great military, political and economic tensions’ of the seventeenth century: Foucault (1991), p. 97. His examples, however, are from continental Europe (such as the Thirty Years War). It is possible that, in England, the economic expansion under Elizabeth, the relatively seamless transition from the Tudor to Stuart regimes and the lack of major ground war meant that the art of government developed earlier there than on the continent.

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Chris Dent

Chris Dent is an Associate Professor at the School of Law, Murdoch University.