Acacia, FOSS and the Supreme Court in 1882

I've been thinking about the Acacia patent infringement suit against Red Hat and the companies previous pursuit of a range of entities from educational institutions to the porn and broadcasting industries. I realised that it reminded me of a quote James Gleick mentioned from a US Supreme Court case in the 19th century (in his "Patently Absurd" essay from 2000, which is still well worth reading), when noting that patent rights lead to higher prices:

"It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country... It embarrasses the honest pursuit of business."

The slightly fuller version is:

"The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of unknown liability lawsuits and vexatious accounting for profits made in good faith."

(I just checked and sure enough Red Hat has most of the more comprehensive version of the quote on its IP in public policy page)

The case was Atlantic Works vs. Brady, 1017 U.S. 192, 200 (1882) - a dispute over a design of a dredge boat - and the quote from the opinion delivered by Justice Bradley. Interestingly enough, Justice Douglas refers to this quote in his concurring opinion in another patent case 68 years later, The Great Atlantic and Pacific Tea Co. vs. Supermarket Corp., 340 U.S. 147 (1950) - a dispute over a cashier's counter - and precedes it with this:

"It is not enough that an article is new and useful. The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end - the advancement of science. An invention need not be as startling as an atomic bomb to be patentable.
But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance." He then lists a whole series of patent disputes which he reckons should never have seen the light of day, my favorites being:

"Hendy v. Miners' Iron Works, 127 U.S. 370: Putting rollers on a machine to make it moveable."

And

"Shenfield v. Nashawannuck Mfg. Co., 137 U.S. 56: Using flat cord instead of round cord for the loop at the end of suspenders."

and

"Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co., 152 U.S. 425: An oval rather than cylindrical toilet paper roll, to facilitate tearing off strips."

I suspect the Acacia litigation may be more damaging ultimately than the SCO case, as yet again we confirm Hegel's belief that 'what we learn from history is that we do not learn from history'. And I wonder what Justices Douglas and Bradley would have made of the patent litigation frenzy in modern times?

(Btw, the Amazon 1-click patent Gleick refers to is still live - in September this year a review panel at the US Patent and Trademark Office rejected the decision of a patent examiner that the patent failed the obviousness test. Slashdot, not surprisingly, has more on the story)