Drafting Protection for Immaterial Property in the Age of Heavy Industry

The lathe, in its essentials, is an approximately 2500-year-old technology. Yet between 1870 and 1920 the U.S. patent office granted over two thousand patents for metalworking lathes. Did this proliferation reflect a spike in innovation during the Second Industrial Revolution or a growing enclosure of what legally constituted property? Assuredly much changed in the fabrication and design of machine tools over the nineteenth century: the use of fossil fuels as energy sources, steam and later electrical power, novel kinematics, and metallurgical improvements. But did the many patents entailing adjustment to these features reflect the “democratization of invention” or the rise of corporate R&D?¹What did it mean that assertions to industrial IP took place within an era typified by the advent of materials science and the crisis of deflationary recession (1873-1896)?

This paper seeks to answer these questions by investigating how Gilded Age machinery firms such as William Sellers & Co. and Niles-Bement-Pond redefined industrial labor and property via depiction. Drafting was used to impose new labor regimes by tracking the circulation of shop drawings to compute labor time and piece rates. Complementing the reformulation of labor, efforts intensified to gather what I call “ghost property,” or evidence of each step or material left in the wake of production. Although the norms of patent drawing were wholly distinct from those in shop drawings, changing visualizations altered the nature of testimony in IP disputes. The infringement case against Niles-Bement-Pond launched by Bethlehem Steel, owner of the patent for Frederick W. Taylor and Maunsel White’s process for hardening tool steel, illustrated how conflicting forms of visual knowledge and depiction technologies underpinned IP claims and control over the work process.

1) B. Zorina Khan, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920 (Cambridge University Press, 2005).