An Ingenious Man Enabled by Contract
Just as the law and culture of the workplace in the early postbellum years embraced worker control of craft and mechanical knowledge as part of the antimonopoly conception of entrepreneurship, so too did the law and culture of patenting. In 1860, the law presumed that the inventor should own his patents unless or until he assigned or licensed them to others. Leading thinkers on American political economy from Hamilton to Lincoln viewed technological development as crucial to American progress, and the patent system was widely believed to be integral to it. The general faith in patenting and technology included a particular veneration for inventors, and courts would not lightly divest an inventor of his possibilities for enterprise.
Moreover, the fact that patents could be seen as distinct things separable from general workplace or craft knowledge facilitated courts in seeing patents as employee property. Even as the growth of factories and offices in the 1870s might have prompted courts to realize that control over the production process—and thus craft knowledge—was essential to the employer’s right to manage, judges remained reluctant to reject an employee’s ownership of an innovation, distinct from the general craft knowledge. The shop-right doctrine recognized that when the innovation or invention was incorporated in the employer’s normal processes of production over an extended period, to grant the employee an exclusive right to the invention would be too great an interference with the employer’s interest in controlling the business. Indeed, the core of the Supreme Court’s reasoning when it invented the shop-right doctrine in McClurg v. Kingsland in 1843 was that the employee who left to go work for a rival overreached if he attempted to deny the former employer the right to use the process and to deny to the public the benefits of competition. Whereas in the early twentieth century courts would emphasize