Behold the medieval glory of the patent system

Written by: Graham Barker // Posted on: // Category:

At least one family in fifteenth-century England would have had no trouble recognising the twenty-first century patent system. Bear with me for a few paragraphs and I’ll get to the relevance.

The Pastons were an astute Norfolk family who, after the Black Death created severe labour shortages, rose from peasantry to wealth and high status in only three generations.

They were remarkable in being prolific writers of letters at a time when literacy wasn’t much of a thing. Many of their letters and documents survive. They give us a fascinating insight into both daily life and power politics during the Cousins’ War (aka Wars of the Roses), a long and bloody aristocratic contest to rule England during which sides were changed like socks.

The Pastons were essentially business people who stayed out of war and politics for as long as they could. But they owned substantial amounts of valuable land and buildings that rivals, taking advantage of the civil turmoil, queued up to take from them.

The jewel in their property crown was Caister Castle, inherited from John Fastolf (model for Shakespeare’s Falstaff) for odd and unclear reasons. Fastolf’s deeply unhappy heirs embarked on a long and ruthless campaign to get it back.

For twenty years the Pastons exhausted themselves financially in protracted legal battles and a few actual battles. They won eventually, but mainly because Fastolf’s widow tired of the struggle and gave up her claim to Caister.

Medieval property law - a thug’s charter

A big problem for the Pastons was the feebleness of medieval property law, which too often protected nothing. You could buy property fair and square - fully paid for, fully documented - but if someone more powerful than you came along and claimed it, there might be little you could do to stop them.

All they needed was a flimsy past connection to that property and enough money or influence to persuade a court to see things their way. Their right of ‘inheritance’ was then judged greater than your right of purchase.

After that - or even before that - your challenger might simply seize your property by force. And it was serious, often lethal force.

In 1469 the Pastons had to defend Caister Castle against a besieging army of 3000 men and cannon. Hasty diplomacy kept the Pastons in one piece but at a cost of losing the castle for a number of years.

Now the patent relevance…

Over the centuries property law has become more robust and reliable. Generally speaking, if you can prove you own it, it’s yours and stays yours.

Unless the property you own is a patent.

Then, if you’re unlucky and someone challenges or infringes it, in some respects it’s straight back to the fifteenth century. You may no longer be threatened by a 3000-strong army but in the sense that you get only what you can afford to pay for, not much has changed.

The starting point is that a patent on its own does not protect your invention. A patent isn’t an insurance policy. There is no claims line you can call when someone infringes your patent, no investigative team ready to swing into action on your behalf.

(That’s if you even know someone has infringed your patent. A competitor below your radar in a far away market may be able to infringe with impunity if no intelligence reaches you.)

If a patent on its own doesn’t protect your invention, what does? The answer is, a patent plus lots of money. Usually mind-boggling (in your terms) amounts of money, to pay for all the legal representation you’ll need if your dispute with an infringer or challenger reaches court.

If your opponent is a large company with lots of money and time at their disposal, and you’re an average inventor or small company owner, the likelihood is that your ability to spend won’t come anywhere near theirs. And they will know it.

They might be prepared to spend years sitting it out and spinning it out while you slide closer to the edge. That’s the equivalent of their 3000-strong besieging army, minus the gunpowder.

It may be that, like the Pastons, a combination of luck and persistence will win the day, or enough of the day to be worthwhile. But the cost - not just financially but in terms of stress, fear, frayed relationships, wasted time, lost business and possibly lame duck status bestowed on you by lenders, investors and customers - could be enormous.

At least the Pastons could refresh their family through marriage and childbirth, but you might not have that option.

So that’s the lesson for today. Along with every shiny new patent you also get free entry to a medieval system of law and rough justice.

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