Chapter 6: The Dilettante’s Defence: Patent Law, Research Tools and Experimental Use
In 1854, the American transcendentalist poet and writer, Henry David Thoreau, wrote his classic text, Walden, about the two years that he spent living in Walden Pond, near Concord, Massachusetts.1 He rhapsodized about the life of the natural philosopher: To be a philosopher is not merely to have subtle thoughts, nor even to found a school, but so to love wisdom as to live according to its dictates, a life of simplicity, independence, magnanimity, and trust. It is to solve some of the problems of life, not only theoretically, but practically. The success of great scholars and thinkers is commonly a courtier-like success, not kingly, not manly.2 This romantic vision of the scientist as a natural philosopher and amateur thinker has been remarkably powerful in patent jurisprudence. Memorably, the defence of experimental use in the United States has been described as a ‘dilettante aﬀair’.3 In the early part of the nineteenth century, Story , a legal polymath, an associate justice of the Supreme Court of the United States and the Dane Professor of Harvard University, devised the defence of experimental use in respect of patent law. In the 1813 appellate decision of Whittemore v Cutter, Story considered whether a party had infringed the patent assigned on a machine used to produce playing cards. His Honour observed: ‘It could never have been the intention of the legislature to punish a man, who constructed such a machine merely for philosophical experiments, or for the purpose of ascertaining the suﬃciency of the...
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