Various inventions that have become well-known were never patented, including matches, emoticons, and the magnetic strip. Other noteworthy examples include the polio vaccine (Jonas Salk), monoclonal antibodies (Cesar Milstein), the scanning tunneling microscope (IBM scientists Binnig and Rohrer), and the penicillin (invented and deliberately not patented by Fleming, later patented by Coghill and Moyer in the US).

Question: I am interested in systemic, empirical, and statistical studies that look into such unpatented inventions in more detail. More specifically, I am curious as to what different factors influenced why certain inventions were not patented. Was it because of certain political ideals of the inventor, not filing on time, the invention being too much akin to other products or inventions, or something else?

I've searched on Google Scholar with combinations of various key words, including "patent", "statistical", "analysis", "unpatented", "factors", "prior", "art", "political", and "economy", but I couldn't find much on this particular question.

Note: I've also asked a shorter version of this question on Patents SE, Law SE, and History SE. On the former platform, I haven't received any answers yet - users have commented I'm unlikely to find any answers there because they're more knowledgeable about the patents themselves than about the history behind them. On the latter platform, I made the the question a bit too broad, so it was closed. Therefore, I have later also asked it on Economics SE. It hasn't received any answers there, yet.


1 Answer 1


{edit: includes further details about now-historical examples: monoclonal antibodies 1970s-1980s, and insulin 1920s-1930s:}

First, I'm sorry to hear of your problems getting the question answered, and I hope it will be allowed to remain on this forum. Patents have been controversial in a number of countries more or less since they have existed, but their history is very closely bound up with scientific and technical advance and its history.

I don't think you will find good systematic and statistical studies of the question you posed; and even if you did, I would doubt that the results could be meaningful as a group, because patents and inventions do not really make a population: nearly every one is fundamentally different in the very ways that make it (temporarily) new and possibly of general value and interest.

I suggest that a more realistic approach to investigating the question would be to consider a series of factors or filters that select an answer applicable case-by-case. A few suggestions for filters are offered below, but first it may help to consider two examples, showing that what the question says about the individual motives of inventors is of central importance too.

Here it is also unfortunately the case that myth and fake history can take over. Consider monoclonal antibodies. The 'never patented' webpage to which you linked gave a summary for why they were not patented. But as it happens, in the 1980s I met and spoke with Cesar Milstein and some others concerned with the invention/development of monoclonal antibodies. What I heard directly from them about the reasons for not patenting, (and what little was directly reported from Milstein himself in the press), was very different indeed from the summary as it now stands in your linked web-page.

According to Milstein's own words (and his early press interviews) he began with considerable feeling against patents generally, regarding them as a drag on research and an inhibition on its widespread application -- both of which he wished to promote. When I met him, he said that his objectives had not changed, but that his view of the best means to achieve those objectives had changed. His expressed view, as it had developed, was that it was better to obtain patents and to use them to promote use and application of the technology on reasonable terms, also using the powers given by the rights so as to prevent abuses. He had come to appreciate, he said, that omitting to do that opened the door to later-comers to obtain and possibly to abuse patents for significantly large but differentiated portions of the field in question. That, he felt, had actually happened with the monoclonal antibody invention.

An additional factor in the situation was also that the people who would have had charge of obtaining patents for the monoclonal antibody invention had reached an early view that monoclonal antibodies were not patentably new. This was because at the beginning, the only generally distinguishing feature that they knew of (or perhaps were told about) was that here were molecularly uniform antibodies, where all previous known (natural) antibodies were highly heterogeneous. Now antibodies, including heterogeneous natural antibodies, are immunoglobulin proteins. On the other hand, patients with myeloma or its benign precursor conditions are known to produce and to have in their blood highly uniform immunoglobulins, sometimes complete, sometimes incomplete ('light chains') -- these often used to be known as Bence-Jones proteins, now often more generically as 'paraprotein'. More to the point, diagnostic tests were known that separate out these uniform pathological immunoglobulins. So preparations of molecularly uniform immunoglobulins were in themselves not new (at least in the view of some of those involved at the time). Of course it may be very possible or likely, that something relevantly new could have been identified and articulated about the new technology if the people involved had had deeper discussions at the time. But it does seem likely that, given the early attitude expressed by the co-inventor closely involved, not much of any such deeper discussion had been taking place. By the time Milstein had reached his revised view, enough publication had occurred so that patenting was ruled out anyway. Certainly Milstein was continuing to express some high ideals about the way in which new-invented technology should be handled. I don't know how such ideals fare in more recent cases these days, but perhaps that's not part of the current question.

There is a notable further relevant example of hesitancy or indecision about patenting in the medical/biological field: the original insulin invention/discovery of the 1920s. There was initial indecision: one of the original co-inventors, Banting, a physician, began by thinking it was contrary to his professional ethic to apply for a patent. (See Michael Bliss's 'The Discovery of Insulin'.) Eventually, and possibly with little prospect of getting insulin manufactured and available in required quantity without a patent, Banting changed his mind, and patents were obtained by the original inventors in several countries, also partly for the sake of controlling quality and preventing the appearance of imitations in an age when pharmaceutical regulation was not as developed as it is now. For some countries the rights were passed into the ownership of relevant authorities there. But then later there was yet further reconsideration, and the holders of some of the original patents deliberately allowed them to lapse. There seems no record of their reasons, these lay perhaps in a view that the original purpose no longer called for them, or perhaps in general disapproval of patents.

In both these examples there was clear lack of consensus on the part of those in whose hands the initiatives lay, about why and whether and how and what patents should be obtained and maintained. Each case contains a highly individual history that can be reported (or perhaps misreported), further hindering systematic study.

Apart from the complexity of the individual examples mentioned, there are a few more general possible factors or filters that can lead to absence of patent.

One filter is that patents have always been expensive to obtain, and something that nobody would want to copy will not normally be thought worth patenting however high its scientific interest -- unless it's a 'vanity' patent.

Another filter is that the categories of invention legally allowed to be patented have been variously defined over time, and perhaps now the 'gate' is wider open than it has ever been. For example software inventions and biotechnology inventions -- at least of several kinds -- used to be excluded, but those exclusions seem now to have been narrowed considerably.

Another filter arises from the fact of whether the thing in question has already been published or used, if it has, then patenting is usually ruled out.

These are just a few among important possible reasons for any particular case of 'no patent'. I think they and the examples offered above show how intractable to systematic treatment the question can be.


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