This past Shabbat, Jews around the world began the annual cycle of reading the Torah from the beginning of Sefer Breishit (the Book of Genesis). At the end of this week we will continue, reading about Noah, the flood, and Tower of Babel. Between these two sections, there are a number of issues that jump out to me as an IP practitioner.
After Cain kills Abel, we read about the lineage of Cain. One of his progeny, Yuval, is described (4:21) as “the ancestor of all who play the lyre and the pipe”. Another, Tuval-cain, is described (4:22) as the person “who forged all implements of copper and iron”. The inclusion of a brief mention of these technological developments reflects the fact that man has been developing new technologies since he first appeared on the scene. That these developments are mentioned only after the killing of Abel is no doubt part of the reason that some people asked, “How could Cain kill Abel if metallurgy hadn’t been invented yet and thus there were no swords?”, a question to which Ibn Ezra (on 4:8) responds with, in my paraphrasing, “Dumb question, he could have choked him with his hands or clubbed him with a stick or with a rock.” Inasumuch as Abel had already offered animal sacrifies, one assumes that stone knives were also available.
Indeed, when Adam is cursed by God for eating from the tree from which he is forbidden eat, he is told, (3:19) “by the sweat of your brow shall you get bread to eat…”, a process that requires a non-obvious sequence of steps, a sequence that no doubt was patentable in its day, had patents been a thing then. Evidently bread was known to Adam at this time, but now he would need to invest much more effort in making it than he had hitherto. Or, as Ben Zoma marvels, as recorded in the Babylonian Talmud Brachot 58a, “How much effort did Adam the first man exert before he found bread to eat: He plowed, sowed, reaped, sheaved, threshed, winnowed in the wind, separated the grain from the chaff, ground the grain into flour, sifted, kneaded, and baked and only thereafter he ate. And I, on the other hand, wake up and find all of these prepared for me.” (translation from Sefaria.org.il).
Ben Zoma was wealthy, and so his remark could have been understood as expressing gratitude for how privileged he was to have been able to avail himself of the DoorDash of 1900 years ago. But it could also be understood as marveling at how the division of different kinds of labors enabled industrial production, which was more efficient than individual production, as certain steps could be carried out on large scale (possibly in combination, just as much later someone would invent the combine harvester). Ben Zoma makes a similar comment about clothing (“how much effort did Adam the first man exert before he found a garment to wear? He sheared, laundered, combed, spun and wove, and only thereafter he found a garment to wear. And I, on the other hand, wake up and find all of these prepared for me.”), which again can be understood as expressing thanks either for being able to use an early version of Amazon Prime, or as marveling at industrial production.
In this vein, there is a midrash that says that Cain’s offering that was rejected by God was an offering of flax seeds (linseed). The production of linen from flax, like the production of bread from grain or the production of clothing from wool, is multi-step process that at the outset was non-obvious. Post-deluge, we encounter two more processes developed by man: we read that Noah became a vintner (9:20-21), and in the Tower of Babel story, we first encounter brick-making (11:3).
Inamsuch as Noah was a descendant of Seth, not Cain, and per the text all of Cain’s descendants presumably perished in the flood, an interesting question that arises is, Was the knowledge accumulated by Cain’s descendants destroyed along with the flood? The text itself seems to suggest not. First, it refers to Yaval and Yuval as the fathers of, respectively, “those who dwell in tents and amidst herds” and “all who play the lyre and the pipe” (4:20–4:21). Second, that the text bothers to mention Yaval, Yuval and Tuval-cain and their innovations at all suggests that at least some of those innovations outlived them, even beyond the flood.
This leads to another observation. As some technologies are superseded by superior technologies, the knowledge of how the older technologies worked becomes less common, and in some instances disappears completely. As an example of the former, the Mishna in the first chaper of tractate Moed Katan says “One may set up an oven, a stove, and a mill on the intermediate days of a Festival. Rabbi Yehuda says: One may not chisel millstones for the first time on the intermediate days of a Festival.” The Bavli immediately seeks clarification:
“What is meant by chiseling millstones? Rav Yehuda said: Cutting grooves into the millstones. As the millstones wear down over time and become smooth, one must occasionally cut grooves into the stones so that they can grind properly. Rav Yeḥiel said: Cutting out an eyehole in the upper millstone, through which the grain can pass, so that it can be ground between the two millstones.”
When I encountered this discussion recently, I was unsure what the Bavli was describing, since I have no experience with millstones. So I turned to Youtube, and found that at George Washington’s estate in Mt. Vernon, they used a millstone arrangement very much like that described in Talmud (a set-up which itself had been used for hundreds of years before that), and that even today, there is someone who periodically re-cuts the grooves in the stone. In other words, while today the knowledge of how to make and repair a flour mill as was done in ancient times may be limited to a few people, the knowledge is still out there.
There are many examples of technologies that were developed, adopted, and then receded in popularity, or went out of use altogether. Before the advent of refrigeration, people would cut ice from frozen lakes, then cut that ice into smaller pieces, and deliver the cut ice to customers for use in their ice box to keep food cold. Patents on such devices were granted by the USPTO from at least the early 1900’s to as late as 1940. Vinyl records have made a comeback in recent years, but before they originally become popular in the mid-1900’s and then fell out of favor in the 1980’s, there were disks made of shellac, and before that wax cylinders. For a brief period of time there was something called a wire recorder (my grandfather had one), and then in the 1960’s magnetic tape became popular, first as open reel tapes, then as cassettes and 8-track tapes. Undoubtedly, there are a few people around today who know how to make these things work, even if the tapes and the machines to record and play them are no longer mass produced. Ditto the video cassette recorder.
Twenty-five or more years ago, my colleague David Klein, who over his career wrote many patent applications for mechanical locks, received a description of an ostensibly new lock design. David showed the inventors a book of ancient inventions that he’d happened to see, which book depicted a lock from ancient Egypt that anticipated their invention by several thousand years. On that basis David dissuaded them from even drafting the patent application.
But contrast that with another case that David mentioned to me: Damascus steel, used to make swords of legendary functionality, such that even Richard the Lionheart raved about them when he returned from fighting Saladin in the Third Crusade. Today, the exact materials and method for making those swords is lost, and thus in principle, one could patent the method as well as a particular sword based on the composition of the alloy, provided that the composition is not one found in a known sword.
There’s actually a Biblical precedent for the Damascus steel case: although, as mentioned above, Tuval-cain is mentioned as being the inventor of forging copper and iron, the Book of Samuel (I:13:19-20) also records that the Philistines did not allow the Israelites to be smiths, thus preventing the Israelites from acquiring swords or spears, and forcing the Israelites to go to the Philistines to have their plowshares and other implements sharpened. In other words, the Philistines sought to prevent the Israelites from utilizing iron technology. It’s not clear if the knowledge of how to forge iron implements was also temporarily lost from the Israelites.
An analogous case, albeit from the copyright realm, occurred here in Israel some years ago, with the case of Qimron v. Shanks. Elisha Qimron was a professor, a scholar of the Dead Sea scrolls, who over the course of years used his considerable knowledge to assemble what he believed was an accurate reconstruction of a particular text from among many fragments (as well as missing pieces). Shanks obtained a copy of the text and published it without Qimron’s permission, so Qimron sued for copyright infringement. The defense argued that Qimron had no copyright since he was merely reconstructing something that had already existing. Qimron’s argument was that since no one had the original text, his reconstruction was a highly educated guess as to what the original text had looked like, but nevertheless original to him, since if other scholars had been given the same scrolls and fragments to work with, they would have arrived at different reconstructions. The trial court ruled in Qimron’s favor and the decision was upheld on appeal.
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