Order of Multitudes

The Incidental Archive: Music Notation Patents of the USPTO

Ginger Dellenbaugh is a PhD candidate in music history at Yale who has written and lectured on music and politics, vernacular notation systems, and the cultural history of the voice. Her first book, Maria Callas: Lyric and Coloratura Arias, was published by Bloomsbury Academic in 2022.

On August 24, 1814, British troops marched on Washington City intending to raze the city to the ground. In the ensuing 26 hours, they set fire to the capitol building, the president’s mansion, the US treasury, the department of war, the arsenal, and the bridge crossing the Potomac. The conflagration spread quickly throughout the city, leveling both private and public property until a torrential rainstorm managed to quench the flames. The annihilation of Washington was almost complete, with the exception of one building—Blodgett’s Hotel, which housed the fledgling Patent Office.  Dr. William Thornton, the first Superintendent of Patents, is said to have confronted British troops as they advanced to destroy the building by appealing to their honor, demanding, “Are you Englishmen, or only Goths and Vandals?”[1]

Thornton’s Alexandria,[2] filled not with poetry, philosophy, and drama, but inventions and models, represents a thoroughly modern notion of ideas as valuable commodities.  As an institution, the patent office maintains and administers an archive designed not only to preserve and categorize human innovation, but to provide and define economic protection. The commodification of ideas, understood as IP (intellectual property), which was first elaborated in a statute created by the Venetian States during the Renaissance,[3] found its most concrete and complex manifestation as a system in the structure and operation of the USPTO (US Patent and Trademark Office), which would dominate the global IP landscape for nearly two centuries.[4]

With the support of the Sawyer Seed Grant, I have been researching a unique set of cultural artifacts in the USPTO—inventions of music notation—as evidence of musical communities of practice underserved by traditional practices and pedagogies of Western notation. Currently, I have a collection of over 200 hundred unique notation systems that span more than two centuries, from the first patent for shape notes given to Andrew Law in 1802, which was unfortunately lost in a catastrophic fire in 1836, to a patent granted to Benjamin B. Spratling IV in 2022[5].  My criteria for what qualifies as notation is broad, including not only conventional systems of music writing for composing, but also visualization systems that represent music, pedagogical devices that invent new symbols, and notation for music making machines.   

My interest in the notation patents of the USPTO is three-fold.  Firstly, my research focuses on the inventions as unique embodiments of a certain dissatisfaction with the affordances of Standard Western Notation (SWN); I have yet to encounter a notation patent that does not incorporate and/or alter some aspect of the standard. SWN, here understood as set of practices and pedagogies centered around a defined symbol system, not only defines the core archive of works in musicology—literacy in SWN is still the dominant requisite for induction into the formal practice and study of music not only in the West, but around the globe. I focus on the correlation between SWN and notation inventions not to examine the efficacy of the new systems, but rather to evaluate each new notation system on certain criteria in order to create an overview of common system alterations and their intentions. Shifts and trends in the types of patented notations, and how they intervene with SWN, address the historical conflicts and obstacles that notation inventors encounter, or at least perceive to encounter, in standard Western practices. 

Secondly, my research addresses the broader issue of the USPTO and methods of identifying and verifying IP. For an invention to be granted a patent, the USPTO requires that an application fulfill their qualifications of newness, usefulness, and non-obviousness, qualities that are evaluated by patent examiners and based on an imaginary PHOSITA (Person Having Ordinary Skill In The Art.) While there is nothing to prevent patent examiners from including external material in their examination of an application, the majority of patent applications are measured against other patents.[6] In the case of music notation, this inter-agency policy of verification, as well as the broad nature of qualifications and the loose interpretation of the PHOSITA, have consequences. While almost all of the patents for music notation fulfill the qualification of newness or novelty, they are neither particularly useful nor non-obvious for anyone versed in SWN. 

And yet these notations are not mere oddities; on the contrary, their relationship to SWN gives evidence of musical practice and invention not necessarily acknowledged by standard practices and pedagogies. Notation inventions for the blind, for specific religious practices, for non-standard instruments, for new media such as the player piano, typewriter, cellphone, and computers speak to concerns around notating, inscribing and visualizing music that remain largely unaddressed in musicology and music education. Notations themselves, as a kind of data trace of social practice, offer a unique opportunity with which to analyze difference as expressed within a symbol system. Notation can be seen as a distinct mode of knowledge that negotiates between institutionally established standards and extra-institutional factors. The symbol system, in its concrete form as written notation, is, to follow Foucault, a “thin surface film for knowledge;” it represents “certain syntheses or structures, or systems, which reside far beyond all the divisions that can be ordered on the basis of the visible.”[7] Examining such innovations in an historical context sheds light on the relationship between music writing systems and vernacular communities of practice, revealing a diverse history of music making in the United States. Finally, my project examines the patent office as an unintended archive of both cultural commodification as well as marginalized practices. The original intent of IP law is to protect the financial interests of inventors, and yet only a fraction of patents would warrant the considerable expense of prosecuting infringement. Financially non-viable patents are often derogatorily characterized as “vanity” patents in legal circles, similar to how notation inventions are dismissed as curiosities in musicological circles. However, for the inventors themselves, in the guise of potential economic protection, the USPTO offers a certain institutional affirmation. In the case of music notation innovators, their investment in the patent system has resulted in a valuable archive of notation that might have otherwise been lost. In addition, the data accrual system and formalities of the USPTO not only define the scope and nature of archived knowledge, but, through these processes, manifest, perhaps unintentionally, particular ideologies about culture and capital.

[1] As quoted in: W.S. Rusk, “William Thornton: Architect”, Pennsylvania History, Vol II, No. 2 (1935). https://journals.psu.edu/index.php/phj/article/download/20940/20709

[2] While this is a reference to the ancient library at Alexandria, the contemporary patent office is, in fact, located in Alexandria, Virginia.

[3] For more of the 1474 Venetian Patent Act see: Ted Sichelman and Sean O’Connor, “Patents as Promoters of Competition: The Guild Origins of Patent Law in the Venetian Republic”, 49 San Diego L. Rev. 1267 (2012). https://digitalcommons.law.uw.edu/faculty-articles/201

[4] The United States, which long dominated as the global leader in patent allocation, was outstripped by China in 2012.  https://www.wipo.int/edocs/pubdocs/en/wipo_pub_941_2019-chapter1.pdf

[5] Law, Andrew. (1802). US 376X; Spratling IV, Benjamin B. (2022). US 11,289,057

[6] John R. Allison and Mark A. Lemley, “Who’s Patenting What? An Empirical Exploration of Patent

Prosecution”, 53 Vanderbilt Law Review 2099 (2000): 2102. Some of this inter-relational citation could be due to quotas put on patent examiners, which encourage expediency. Another factor is that patents, as public documents, need to obtain copyright on any external cited material.

[7] Michel Foucault, The Order of Things: An Archaeology of the Human Sciences (London: Routledge, 1966/1994): 251.v