Stanislas de Boufflers, December 1790
The patent as we know it today is the product of a sinuous history. Although isolated examples of the granting of exclusive rights to inventors can be found as early as antiquity, the emergence of legal protection for inventions is more recent. In France, the first exclusive royal privilege for an invention was granted in the 16th century. It was followed by many others until the Revolution. But the night of August 4, 1789, when the suppression of all feudal privileges was voted, caused concern among inventors who had received privileges under the Ancien Régime. In this context, one person was to deploy all his talent to maintain protection for inventions while distinguishing it from the privileges associated with absolute monarchy. In doing so, he was at the origin of the law of 1791, which consecrated the appearance of a new type of device: the patent! This character is none other than the knight Stanislas de Boufflers, whose name this Institute appropriately bears. The following mini-novella, extracted from the book L’invention du brevet, une idée de génie (The invention of the patent, an idea of genius), offers you to discover a little more about this important figure.
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With a quick gesture, the man drops his pen, which rolls across his desk, leaving a few drops of ink in its wake. He leaps to his feet, looking worried, and walks around his room in a disorderly fashion. If he spins around like a caged lion, it is not to warm up on this cold December evening, but rather because he is preoccupied with the report he must write. His task is delicate and he must mobilize all his intelligence to achieve the goal he has set himself: to convince the Assembly to maintain a protection of inventions to meet the needs of the nation, while distancing himself from the old privileges whose name has become odious.
He stops dead in his tracks and a loud laugh escapes him. Would he, the knight Stanislas de Boufflers, who had seen and experienced almost everything in the 52 years that separated him from his birth, be impressed by the writing of a simple text? He, the literate child of a noble family, who grew up at the court of Lunéville with a former king of Poland as godfather, he who went through the seminary and then, for a longer time, through the army, where he climbed all the ranks! He even served as governor of Senegal, while smuggling gum arabic and gold, before returning to France, being elected academician and then becoming a deputy of the nobility at the Estates General of 1789. He is used to success, both professional and gallant. It is therefore not a simple report, as thorny as its subject is, that will get the better of him!
He pulls himself together and returns to his desk. It is decided: he will not be satisfied with a timid or lukewarm report. On the contrary, he will be ambitious and will go back to the “principles of the theory”. The Chevalier de Boufflers pauses for a moment to gather his thoughts. He digs in his memory and remembers Diderot’s writings on the book trade, which emphasized the close link between the author and his work. He seized his pen again and wrote: “If there is a true property for a man, it is his thought”. The emphatic formula delighted him. Who would dare to contradict it? Anticipating a possible challenge to the singular nature of the field of technology, he continues: “the invention which is the source of the arts, is still that of property; it is the primitive property, all others are conventions”.
The knight is aware of the audacity of his argument. Never before had a law on inventions stated the principle of full and complete ownership in such a clear and general manner! However, he also knows that anchoring the protection of inventions entirely in a natural right of the inventor is fraught with consequences and potentially a source of contradictions. In order to guarantee the application of this right, he inscribes it in what resembles a contract between the inventor and society. In exchange for the recognition of his property, the inventor must disclose his invention to society and accept the temporary nature of his right.
Boufflers was now totally convinced that recourse to a natural right and a social contract was the only way to hold the edifice together. It would free inventors from the critical and oppressive gaze of learned societies and the administration, which were incapable of pronouncing in advance on the usefulness of their inventions. The abolition of prior examination and its arbitrary character will give the public and the market the means to judge for themselves the interest of inventions, without harming either the inventors or the public authorities.
Satisfied with his reasoning, the chevalier de Boufflers still wonders, however. Will his subtle construction be enough to convince the revolutionaries? Certainly, the bourgeois remained very attached to the notion of property, but would the deputies not see in his report a way to maintain the privileges of the Ancien Régime? To reduce this risk, the man of spirit knows that he must go even further.
He took up his pen one last time and, emphasizing the superiority of English laws in this matter, he skillfully advocated following the example of the Americans who had chosen to be inspired by them. Attempting to draw an unbridgeable line with the royal heritage of the past, he wrote that “it is now invention itself that is a privilege”.
At this late hour, the winter cold invaded the room while Stanislas de Boufflers wrote, motionless, the last lines of his report. But the knight did not tremble. All he felt at that moment was the satisfaction of having accomplished his duty with seriousness and application. However, as a seasoned military veteran, he knows that it is too early to claim victory…
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Pascal Attali
You can find the continuation of this episode as well as many other events which made the world history of patents in the book L’invention du brevet, une idée de génie? by Pascal Attali. Prefaced by Pascal Faure, Director General of the INPI and postfaced by Yann Ménière, Chief Economist of the EPO, this book, which brings together history, law and economics, allows us to understand where our patent system comes from and to reflect on its future.
It is available in French and English on Amazon: https://www.amazon.fr/Linvention-brevet-une-id%C3%A9e-g%C3%A9nie/dp/B0B2HYL73Y/ et https://www.amazon.com/ONCE-UPON-TIME-PATENT-Understanding/dp/B0B31HBXQY/.