Reforming patents fails—the USSR proves—the alt solves workers’ perception of protection

Jocelyn, Lecturer in Intellectual Property Law at Queen’s University Belfast, United Kingdom; Johanna, Senior Lecturer in Culture and Society at Linköping University, Sweden 12-1-2023, "Spectres of Intellectual Property in the Soviet Union: The Development and Recognition of the Inventor’s Certificate", De Gruyter, https://www.degruyter.com/document/doi/10.1515/pol-2023-2022/html // QUEERAMID

After the October Revolution, the Bolsheviks aimed for a total transformation of society. Having chosen revolution, and not reform, the task was monumental. Although there were voices following the revolution that argued for the necessity of abolishing both law and property, the Bolsheviks did not do away with private property altogether, and instead sought full state ownership of the means of production.[17] Among the institutions to be transformed was the patent system: at the time of the revolution, the 1896 Decree of Privileges for Inventions and Improvements was in force.[18] These capitalist patent laws were repealed and the Bolsheviks issued a decree in 1917 which nationalised authors’ rights and patent rights “in the interest of government.”[19] On 30 June 1919, Vladimir Lenin (1870–1924) issued the Decree on Inventing which again nationalised all inventions, or to be more precise, declared that all inventions that had been pronounced useful by the Committee for Inventing could be declared state property.[20] This could be done by means of an agreement with the inventor, or, if necessary, against the inventor’s will. The Decree on Inventing recognised the inventor’s avtorskoe pravo (author’s right) by the granting of certificates that recognised the usefulness of their technical contributions, called avtorskoye svidetel’stvo, which literally translates as “author’s certificate,” but over time the term “inventor’s certificate” became the Anglophone norm to avoid confusion with copyright. The Decree on Inventing reflected socialist ideological opposition to patents, which saw recognition of intellectual property as going against the teachings of Marxism. One aspect of the critique was that the patent system was inherently capitalist and thereby inherently flawed. Soviet writers emphasised that it was not inventors who became rich, but large entrepreneurs, echoing the Marxist view that intellectual labour and talents were extracted to enrich the capitalists in a “vampire-like” manner.[21] Boris Mamlyuk also points out, in the context of copyright, that the relation between an individual and society was at the heart of the issue: for a true communist, “the state had rights to the given work because the actual creator of the work was not merely the individual author, but also the social medium in which he or she worked.”[22] Soviet scholar, Sergey Raevich, called this the problem of “the public nature of production, and the private nature of value extraction.”[23] Finally, the ideological criticism also targeted how the capitalist patent system promoted industrial secrecy. Although the principle of the patent bargain made the grant conditional on disclosure of the invention, market competition actually choked the flow of technical information as applicants strove to limit disclosure to withhold useful information from their competitors.[24] A socialist state should therefore “design systems to facilitate technical information exchanges that would allow the Soviet economy to achieve a level of technological growth far superior to that of the most developed capitalist countries.”[25] However, throughout the Soviet period (but particularly its first twenty years), there were many substantial changes to the legal protections for inventions. The revolution was immediately followed by a devastating Civil War (1918–1922), which ultimately consolidated Bolshevik power, but also made the 1920s into a time of pragmatic recovery necessitating ideological compromises. Thus, while many Bolsheviks considered individual proprietary rights to inventions as entirely out of place in a socialist state, the Soviet Union was haunted by intellectual property and eventually resurrected patent law to achieve its political and economic goals. 2.2 Building Socialism Through Compromise with Capitalism, 1924–1931 The NEP was announced in 1921. Sometimes dubbed a compromise with capitalism, it allowed for some market principles and private enterprises as a means to recover from wartime devastation and strengthen the state. This was justified by the Marxist view that a direct transition to communism was impossible, but necessitated socialism as a transitional stage in which elements of capitalism would survive.[26] In this package, patents were seen as instrumental in attracting foreign investment and improving foreign relations to foster recovery and industrialisation after the Civil War.[27] As part of the NEP, the government promulgated the Soviet Patent Law on 12 September 1924.[28] The new law organised the Committee for Inventions, which operated along the lines of the patent offices in other countries.[29] It afforded equal rights for Soviet citizens and foreign inventors to obtain patents and provided an exclusive right for patent-holders to exploit and licence their inventions for a period of 15 years. The reinstatement of proprietary rights and private enterprise was controversial but was deemed necessary to gain access to foreign technological know-how that could be useful during reconstruction. However, since most industries remained under government control in the Soviet Union, there was very little scope for inventors to pursue private business activities with their patented inventions.[30] If the 1919 decree was firmly rooted in Marxist-Leninist principles, these were absent from the new law. The reasons for this were purely pragmatic; even among many leading communists, it was believed that patent protection was necessary to attract foreign technology-intensive investments: “protecting intellectual property rights was indispensable to attract trade, and trade was indispensable to strengthening the Soviet state.”[31] During the 1920s, the Soviet Union entered into a number of bilateral agreements with European states in order to normalise trade relations, and in each of these agreements the Soviet Union promised to secure the property rights of foreign investors, contradicting the nationalisation decrees issued a few years earlier.[32] The treaties also gave the Soviet Union something else it desired: international legitimacy and legal personality, as these agreements demonstrated recognition of the Soviet state under a constitutive theory of recognition under international law.[33] 2.3 Encouraging the Worker-Inventor, 1931–1961 The reintroduction of patents soon came under ideological attack, with increasing intensity as the Soviet Union prepared to launch the first Five Year Plan in the late 1920s. By the end of 1927, new draft laws for inventing had already been developed. Not only was there ongoing criticism of the patent system being at odds with Marxist-Leninist principles, but also of the workings of the Committee for Inventions (including espionage allegations, which, in what can be seen as a preview of the purges, resulted in two people being shot and another nine sentenced to up to 10 years of hard labour). The ideological atmosphere that had allowed for a Western-style patent law was gone.[34] The first Five Year Plan was launched in 1928 under the leadership of Joseph Stalin (1878–1953) and aimed to achieve rapid industrialisation of the Soviet Union. Technological optimism and utopianism were rife in the early Soviet state, as reflected in the slogan Tekhnika reshaet vse (“technology decides/solves everything”).[35] A new approach to invention law was also devised to support the aims of rapid industrialisation, culminating in the Decree on Inventions and Technical Improvements, passed on 9 April 1931. Its preamble noted the widespread dissatisfaction with the outcomes of the NEP patent system: In spite of the enormous importance of mass inventions to the cause of the struggle for the speed-up of industrialization, the exploitation of inventions and the exchange of technical experience are most unsatisfactory. The work of the bodies set up to assist inventions is inadequate. The creative initiative of the worker-inventors is not sufficiently encouraged.[36] The above preamble and the first Five Year Plan reflected the campaigns to foster inventions, where “mass inventing” or “worker inventing” were desirable outcomes. To resolve the shortcomings of patents and ensure the timely exploitation of inventions in the Soviet Union, the new law sought to bring about closer relations between the worker-inventor and the state.[37] However, this was not a complete return to the post-revolutionary abolition of patents. Instead, the decree reintroduced the inventor’s certificates while keeping patents as a parallel option. In practice, the dual system distinguished between inventions by Soviet citizens and foreigners. Patents, primarily intended for foreigners, were issued for a term of 15 years and required the invention to be worked in the Soviet Union during the first three years of its term or be subject to a compulsory licence.[38] Despite increased ideological vigilance, pragmatism prevailed in this compromise: it allowed Soviet inventors to patent abroad via reciprocity, and likely facilitated contract negotiations between Soviet industries and international companies. Another aspect that favoured patents was that their annual fees were a source of hard currency, which was always in short supply in the Soviet Union.[39] Inventor’s certificates, in contrast, required assignment of ownership to the state. The worker-inventor could not exclude others from using the invention, but received monetary remuneration for such use on a fixed scale calculated according to the annual savings that the invention brought to the industrial field. Inventions that did not bring savings but rather improvements in quality, work conditions, or safety measures were also rewarded on the fixed scale.[40] Esteem was also an important incentive,[41] and inventor’s certificates further secured for the inventor certain exemptions and social privileges, such as improved housing, vacations, higher education, and promotion to research positions.[42] Thus, as several American commentators have noted, the system was designed to provide incentives for employed inventors.[43] Both patents and inventor’s certificates had novelty and industrial application requirements. Although, in principle, a Soviet inventor was free to choose to apply for either a patent or an inventor’s certificate, the only reasonable option was the latter. The government favoured them for ideological reasons, and discouraged royalty-based systems even if the beneficiaries were Soviet citizens.[44] Patent applications carried high fees, while inventor’s certificates had none. Whereas a patent holder had to bear the costs of commercialising their invention, the ownership of inventions by the state came with the responsibility for exploitation of the invention: the law stated that “each useful invention shall be implemented in all enterprises of the industry, where it can be applied with the benefit.”[45] The new 1931 law was to work in tandem with the mass inventing campaign mentioned earlier. During these campaigns, there was emphasis on Stakhanovism and over-fulfilment (such as reaching the goals of the Five Year Plan early), and in this atmosphere, minor rationalisation proposals that could increase short-term productivity was favoured over truly innovative inventions that carried a greater risk and where the potential benefits were long-term. Following the 1959 legislation, usefulness became the key criterion for inventor’s certificates, which paradoxically can be seen as an obstacle to innovation. As more pathbreaking inventions were perhaps more difficult to put to immediate use, some inventions with great potential were in fact deemed “useless” as the responsible organ could not see any immediate application.[46] In the decades that followed, the key changes were not to the regulatory framework but to the organisational form of the administration and processing of applications. The entire Soviet Union was affected by the terror and purges in the 1930s and the Committee for Inventions was no exception. The mass inventing campaign had faced difficulties reaching targets, resistance from state enterprise directors who did not use suggested inventions, and struggles to promote exchange of technical information between state enterprises. The Committee for Inventions was abolished in 1936 and its former head was arrested and shot in 1937. The administration of inventions became decentralised and fragmented, there were changes to the framework and procedures several times, including attempts at recentralisation, in the the coming decades, which were shaped by the terror, World War II, and new rounds of repressions.[47] Following Stalin’s death, there was a return to a centralised invention system: the Committee for Inventions and Discoveries was established in 1955 and “quickly rose in prominence and received generous state support.”[48] This prefigured a revision of the law on inventions. Inventor’s certificates were part of broader government efforts to increase inventive activity, such as invention campaigns and changing institutional infrastructure. The new Statute on Discoveries, Inventions and Rationalization Proposals, enacted on 24 April 1959, added scientific discoveries as a category for protection and established a new certificate for discoveries, with both inventions and discoveries handled by the Committee for Inventions and Discoveries.[49] The new law kept patents alongside certificates, although patents could not be obtained for chemical products, medical compositions, foodstuffs and articles of refreshment and pure scientific discoveries.[50] As with previous statutes, patents were valid for a period of 15 years from the filing date, whereas inventor’s certificates had an indefinite duration. Although the rights to the invention were exclusively assigned to the state, this meant that Soviet inventors could “receive remuneration from the user of his invention indefinitely.”[51] The State also “assumes the responsibility for exploiting the invention, having regard to the expediency of its introduction.”[52] The legal requirements and rewards from inventor’s certificates were deliberately geared towards benefitting Soviet citizens as “worker-inventors.” As before, Soviet inventors tended to seek protection through the inventor’s certificate system, and rarely obtained patent protection.[53] 2.4 Encouraging the Circulation of Knowledge The inventor’s certificate system was designed to promote the free flow of knowledge. Lifting legal restrictions on knowledge flows was seen as pivotal in the Soviet aim of rapid industrialisation and catching up with the West,[54] and this is an area where Soviet commentators emphasise the difference with patents. However, perhaps paradoxically, Peter Maggs and James Jerz suggest that the goal of promoting flows of information may also help explain developments in the 1960s and the Soviet decision to accede to the Paris Convention “after having remained aloof from it for so many years.”[55] As in earlier decades when retaining patents were seen as instrumental in relation to foreign trade, there was a general desire to conform to international business practice and attract more foreign investments, but the need to obtain patent information also played a role. In line with this focus on knowledge flows, the Soviet Union had in the post-war decades built up a great capacity for organising and distributing patent information. E. Artemiev, the Deputy Chairman of the Committee for Inventions and Discoveries, outlined this centralised system of patent information and patent services in Industrial Property for the benefit of the international reader. He emphasised that the legal principle of invention’s belonging to society prevails in the Soviet Union and provides the basis for unimpeded circulation of patent information. Artemiev suggested that this centralised patent information system was unique, not to be found anywhere else in the world. He also pronounced it a success, having “rapidly resulted in an increase in the number of inventions.”[56] This outline of the work of the All-Union Technical Patent Library (and other, regional, parts of the system) is both idealised and self-congratulatory. However, the monumentality of it is striking: the information system covered both domestic and international inventions, aiming for a near totality of inventions worldwide.[57] However, Maggs and Jerz suggest that the efforts to organise, disseminate and use patent information in the Soviet Union were not paying off. Given the significant delay between filing and publication, not least in the US, the “disclosure” part of the patent bargain was too slow, and: Soviet scientists may work for years on a problem, the solution to which has already been filed at the United States Patent Office. Given the present rapid expansion of the Soviet economy, the royalties involved would be a small price to pay for the contributions these inventions could make to Soviet economic development […] Payment of substantial royalties would of course involve a drain on limited Soviet foreign exchange resources. To some extent this drain might be compensated by royalties received by Soviet patents abroad.[58] Artemiev’s letter was published in 1969, several years after the Soviet Union joined the Paris Convention. The potential difficulty in obtaining timely information from the published patent specifications thus did not immediately diminish the faith in disseminating technical information. The Soviet effort at increasing the circulation of technical knowledge did not altogether fail; Svitlana Lebedenko even suggests “the Soviet period was a peak moment of Russian innovation.”[59] Inventing activity was indeed larger than patent activity in other industrialised countries, and with 10 million members in the Soviet inventor’s society, mass inventing can be said to have been achieved. Patent services were available to inventors at most enterprises and research institutes (although, as mentioned, it was firmly the inventor’s certificate that attracted Soviet inventors).[60] The emphasis on making knowledge accessible and freely circulating is in stark contrast to many accounts of Soviet society which emphasise how secrecy was endemic.[61] Although there was no trade secrets law in the Soviet Union, the law on inventor’s certificates explicitly provided for secrecy in certain circumstances, under which many military inventions were made secret.[62] Loren Graham has also famously characterised innovation in Russia as plagued by “lonely ideas” – the absence of a social environment where great ideas can be turned into economic development. Graham takes a much more negative view on the inventor’s certificate system and argues that the absence of a proper patent system was a main source for these shortcomings. However, as shown above, inventing activity flourished during the inventor’s certificate regime and the focus on organisation and dissemination of patent information may be seen as ways to combat loneliness. Nevertheless, Graham’s argument can also be interpreted to mean that the main asset of patents is not incentivising invention, but going from invention to innovation.[63] Following the Second World War, inventor’s certificates as a legal form of protection spread to many other of the new socialist states, and the Soviet Union also took a more active role on the international stage. Intellectual property and international trade were seen as essential for the free flow of technical information, which would help to build the economic and political power of the Soviet state. The pursuit of international recognition raised questions about whether the inventor’s certificate was the same as a patent, or not. This issue was a matter that BIRPI and later WIPO gave attention to from the late 1950s and onwards, and as we will see, the socialist countries in these discussions generally stressed the similarities between the two forms of protection.