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From ciphers to confidentiality: secrecy, openness and priority in science

Published online by Cambridge University Press:  20 March 2012

MARIO BIAGIOLI
MARIO BIAGIOLI
Affiliation:
UC Davis School of Law & STS Program, 400 Mrak Hall Drive, Davis, CA 95616–5201, USA. E-mail: [email protected].
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Abstract

I make three related claims. First, certain seemingly secretive behaviours displayed by scientists and inventors are expression neither of socio-professional values nor of strategies for the maximization of the economic value of their knowledge. They are, instead, protective responses to unavoidable risks inherent in the process of publication and priority claiming. Scientists and inventors fear being scooped by direct competitors, but have also worried about people who publish their claims or determine their priority: journal editors or referees who may appropriate the claims in the manuscript they review or patent clerks who may claim or leak the inventions contained in the applications that cross their desks. Second, these protective responses point to the existence of an unavoidable moment of instability in any procedure aimed at establishing priority. Making things public is an inherently risky business and it is impossible, I argue, to ensure that priority may not be lost in the very process that is supposed to establish it. Third, I offer a brief archaeology of regimes and techniques of priority registration, showing the distinctly different definitions of priority developed by each system.

Type
Research Article
Information
The British Journal for the History of Science , Volume 45 , Issue 2: Special Issue: States of Secrecy , June 2012 , pp. 213 - 233
Copyright
Copyright © British Society for the History of Science 2012

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References

1 I take my argument to be complementary to and distinct from the work by Ludwick Fleck, Augustine Brannigan, Harry Collins and Simon Schaffer on the a posteriori construction of discoveries following from the closure of priority disputes. We all look at the instabilities inherent in the process of claiming discoveries, but while they concern themselves with the sociocultural stabilization and destabilization of the object of discovery and the identity of the discoverer, I look at unavoidable instabilities in any priority registration system – instabilities inherent in the process of making things public that would play out irrespective of a consensus about the identity of the object of discovery or the practices for its determination. Despite the obsolescence of their methodology, Merton's, Robertessays remain fundamental to discussions of scientific priority: ‘Priorities in scientific discovery: a chapter in the sociology of science’, American Sociological Review (1957) 22, pp. 635–659CrossRefGoogle Scholar; idem, ‘Singletons and multiples in scientific discovery: a chapter in the sociology of science’, Proceedings of the American Philosophical Society (1961) 105, pp. 470–486; and idem, ‘Resistance to the systematic study of multiple discoveries in science’, European Journal of Sociology (1963) 4, pp. 237–282.

2 Biagioli, Mario, Galileo's Instruments of Credit, Chicago: University of Chicago Press, 2006, pp. 77–134CrossRefGoogle Scholar.

3 Gingerich, Owen and Helden, Albert van, ‘From occhiale to printed page: the making of Galileo's Sidereus nuncius’, Journal for the History of Astronomy (2003) 34, pp. 251–267CrossRefGoogle Scholar.

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5 Mario Biagioli, ‘Venetian tech-transfer: how Galileo copied the telescope’, in Albert van Helden, Sven Dupré, Rob van Gent and Huib Zuidervaart (eds.), The Origins of the Telescope, Amsterdam: Amsterdam University Press, 2011, pp. 203–230.

6 Christiaan Huygens to Henry Oldenburg, 30 January 1675, in Christiaan Huygens, Oeuvres complètes, vol. 7, The Hague: Martinus Nijhoff, 1897, pp. 399–400. The solution to the anagram was later given as ‘Axis circuli mobilis affixus in centro volutae ferreae’.

7 On 12 February 1675 Oldenburg wrote to Huygens, ‘Au reste, i'ay fait voir à nos amis communs l'Anagramme touchant votre nouvelle invention d'horologes. Ils m'ont tesmoigné leur grand desir d'en voir l'effect, et s'en promettent des nouvelles de votre bonté.’ Huygens, vol. 7, op. cit. (6), p. 416. Huygens sent Oldenburg a brief description of the watch on 20 February, informing him that he could use the relevant parts of his letter as an announcement to be published in the Philosophical Transactions. Huygens, vol. 7, op. cit. (6), pp. 422–424.

8 Huygens's caution may have been fuelled by tensions generated by earlier priority conflicts with members of the Royal Society – disputes that may have led him to distrust the society's (and Oldenburg's) proclaimed impartiality. Iliffe, Rob, ‘“In the warehouse”: privacy, property and priority in the early Royal Society’, History of Science (1992) 30, pp. 29–68, 35, 39–41CrossRefGoogle Scholar.

9 Helden, Albert van, ‘Annulo cingitur: the solution of the problem of Saturn’, Journal for the History of Astronomy (1974) 5, pp. 155–174, 156CrossRefGoogle Scholar. The anagram for Saturn was: aaaaaaacccccdeeeeeghiiiiiiillllmmnnnnnnnnnooooppqrrstttttuuuuu, which coded for ‘Annulo cingitur, tenui, plano, nusquam cohaerente ad eclipticam inclinato’ (‘It is girded by a thin flat ring nowhere touching inclined to the ecliptic’). Huygens published it on 5 March 1656 at the end of his De Saturni Luna observatio nova, The Hague: Adrian Vlacq, 1656, and then solved it in his Systema Saturnium, The Hague: Vlacq, 1659, p. 47. He also disclosed it privately in a 28 March 1658 letter to Chapelain. The anagram for Titan was ‘Admovere oculis distantia sidera nostris vvvvvvv ccc rr h n b q x’, which he sent to correspondents in 1655 (having discovered, as he claimed, the satellite on 25 March 1655). He then solved it in 1656 as ‘Saturno luna sua circunducitur diebus sexdecim horis quatuor’ (‘A moon revolves around Saturn in 16 days and 4 hours’) in De Saturni Luna.

10 Iliffe, op. cit. (8), pp. 46–50.

11 At the end of an Appendix that Hooke added at the last moment to respond to (or, perhaps, attack) Oldenburg and, indirectly, Huygens, we find a list of discoveries, four of which are given as anagrams: ‘The true mathematical and mechanical form of all manner of Arches for Building’ (abcccddeeeeeefggiiiiiiiiillmmmmnnnnnooprrsssttttttuuuuuuuux), ‘The true theory of elasticity or Springness’ (ceiiinosssttu), ‘A new Sort of Philosophical-Scales’ (cdeiinnoopsssttuu), and ‘A New Invention in Mechanicks of prodigious use’ (aaaabccddeeeeeegiiilmmmnnooppqrrrrstttuuuuu. aeffhiiiinnlrrsstuu). Hooke, Robert, A Description of Helioscopes and some other Instruments, London: Martyn, 1676 (but published in October 1675), pp. 31–32Google Scholar. While he did eventually solve some anagrams, like the one related to ‘Hooke's Law’, he left the others encrypted.

12 Huygens, vol. 7, op. cit. (6), pp. 419–420.

13 Huygens, vol. 7, op. cit. (6), p. 423.

14 Biagioli, Mario, ‘From print to patents: living on instruments in early modern Europe’, History of Science (2006) 44, pp. 139–186, 157–158CrossRefGoogle Scholar.

15 Similarly, in the introduction to his Horologium oscillatorium, The Hague: Vlacq, 1678, Huygens defended his priority over the pendulum clock by citing the Dutch patents he had been granted in 1657.

16 Determined to secure the international recognition of his inventorship, Huygens appeared less interested in the financial rewards associated with patenting, to the point of offering Oldenburg and the Royal Society an English patent for his watch under their name. Huygens, vol. 7, op. cit. (6), p. 424. Likewise he passed the 1657 Dutch patent on his first pendulum watch to the clockmaker Coster. Biagioli, op. cit. (14), p. 145 n. 53.

17 ‘Extrait d'une lettre de Mr Hugens a l'Auteur du Journal, touchant une nouvelle invention d'horloges tres-justes & portatives’, Journal des Sçavans, 25 February 1675, pp. 68–70 (68 is misprinted as 64 in the text).

18 Huygens, vol. 7, op. cit. (6), p. 414.

19 Huygens, vol. 7, op. cit. (6), pp. 399–435.

20 Price, Alan, ‘Cases of plagiarism handled by the United States Office of Research Integrity 1992–2005’, Plagiary: Cross-Disciplinary Studies in Plagiarism, Fabrication, and Falsification (2006) 1, pp. 1–11Google Scholar.

21 Gomme, A.A., Patents of Invention: Origin and Growth of the Patent System in Britain, London: Longmans, 1946, p. 25Google Scholar. Similarly, the US 1790 Patent Act required the deposit of enabling specifications at the time of the grant of the patent, not the application. Walterscheid, Edward, To Promote the Progress of the Useful Arts: American Patent Law and Administration, 1787–1836, Littleton: Rothman, 1998, p. 465Google Scholar.

22 Dániel Margócsy, ‘Commercial visions: trading with representations of Nature in early modern Netherlands’, PhD dissertation, Department of the History of Science, Harvard University, 2009, AAT 3365343, p. 220.

23 Shapin, Steven, ‘O Henry’, Isis (1987) 78, pp. 417–424CrossRefGoogle Scholar.

24 Birch, Thomas, The History of the Royal Society of London, vol. 1, London: A. Millar, 1756, p. 252Google Scholar.

25 Walterscheid, op. cit. (21), p. 498.

26 Dobyns, Kenneth W., Patent Office Pony: A History of the Early Patent Office, Fredericksburg: Sergeant Kirkland's Museum Press, 1994, pp. 52–57Google Scholar.

27 ‘2009 Position Paper’, Section One: Executive summary, p. 13, at europeanchamber.com.cn, accessed 10 October 2010, added emphasis. For a discussion of the report see ‘EU firms voice fears of trade secret “leakage” in China’, Euractive.com Newsletter, www.euractiv.com/en/enterprise-jobs/eu-firms-voice-fears-trade-secret-leakage-china/article–185148. I found this reference in an anonymous manuscript I happened to review.

28 For an overview of US trade secrets law see Merges, Robert, Peter Menell and Mark Lemley, Intellectual Property in the New Technological Age, New York: Aspen Publishers, 2006, pp. 33–113Google Scholar.

29 Biagioli, Mario and Galison, Peter (eds.), Scientific Authorship: Credit and Intellectual Property in Science, New York: Routledge, 2003Google Scholar.

30 Biagioli, Mario, ‘Patent republic: representing inventions, constructing rights and authors’, Social Research (2006) 73, pp. 1129–1172Google Scholar.

31 A ‘bit commitment’ is defined as ‘a protocol between two mistrusting parties, Alice and Bob, which is supposed to provide the following functionality: In a commit phase, Alice gives as input a value X (e.g., a bit) and Bob gets a confirmation that Alice has committed to a value (without learning the actual value of X). Later, in an opening phase, Alice can decide to reveal the value X to Bob. The functionality of a bit commitment protocol can be compared with that of a safe as follows: To commit to a value X, Alice writes X on a sheet of paper, locks the paper in the safe, and sends the safe to Bob while keeping the key. To open the commitment, Alice simply sends the key to Bob who opens the safe and reads the value of X’. See www.quantiki.org/wiki/Bit_commitment.

32 This would not apply to very difficult claims, whose obscurity could function almost as a form of natural encryption.

33 Paradoxically, a stronger time stamp (obtained by spreading the anagram far and wide) strengthens the claim, but it also puts it at higher risk of being appropriated as a result of being sent out to more people, thus increasing the probability that someone will crack the cipher.

34 If the anagram was printed, the author probably did not need to receive confirmation that somebody had read it. The press itself functioned as witness, so to speak.

35 On Hooke see note 10 above.

36 It would be inaccurate to cast a recipient who might have managed to crack the cipher and publish its content as his own as a plagiarist – at least not in the standard sense of the term. That person would not have sought to steal anything from the first discoverer prior to receiving the cipher – a cipher s/he had not requested. Furthermore, when people receive unsolicited ciphers they typically try to figure out what they are about. Not only is one implicitly challenged to crack the cipher, but having been sent a cipher meant that the sender did not quite trust the recipient. And if the sender did not trust the recipient to begin with, it is not clear why the sender could be surprised if the recipient were to behave in an untrustworthy manner.

37 Maunder, E.W., ‘The discovery of Titan’, The Observatory (1889) 12(147), pp. 146–150Google Scholar; and Lynn, W.T., ‘The discovery of Titan’, The Observatory (1889) 12(148), pp. 181–182Google Scholar; idem, ‘The first discovery of a satellite of Saturn’, The Athenaeum (1888) 3171, pp. 165–166.

38 Writing in 1847, after the era of anagrams had come to a close, David Brewster argued, ‘There are many discoveries and inventions which could neither be properly represented nor satisfactorily reproduced by the transposition of any considerable number of letters. The omission or the addition of a letter might alter or destroy the meaning of the whole, and by thus throwing discord among a mob of letters might occasion that very breach of the peace which the anagram was intended to prevent’. [David Brewster], ‘Mr Adams and M. Le Verrier's researches respecting the new planet Neptune’, North British Review (1847) 7, pp. 207–246, 243.

39 Galileo sent the anagram to Giuliano de' Medici on 11 December 1610. Galileo Galilei, Le opere di Galileo Galilei (hereafter GO) (ed. Antonio Favaro), 20 vols., Florence: Barbera, 1890–1909, vol. 10, p. 483, and unscrambled it on 1 January 1611. GO, op. cit., vol. 11, p. 12.

40 The anagram was sent in August (GO, op. cit. (39), vol. 10, p. 420) and was solved on 13 November 1610 (GO, op. cit. (39), vol. 10, p. 474). We do not have Galileo's letter with the original anagram, which we know only in the reproduction of it that Kepler gave in the introduction of his Dioptrice. Although Galileo solved the anagram only in November, he was already sure of (what he took to be) the three-bodied Saturn by 30 July. GO, op. cit. (39), vol. 10, p. 410.

41 Johannes Kepler, Narratio de observatis a se quatuor Iovis satellibus erronibus …, Frankfurt: Zachariae Palthenii, 1611, in GO, op. cit. (39), vol. 3, Part 1, p. 185. His account of how he came up with this ‘solution’ is somewhat bizarre, as he claimed to have ordered the string of letters contained in Galileo's anagram that way just as a mnemonic device, and that it was this odd Latin verse that gave him the idea of observing to see if Mars had satellites. But given that, in the 1610 Dissertatio, Kepler had already presented the hypothesis that Mars could have two satellites, it would seem that he read Galileo's anagram according to his own guess from a few months earlier.

42 Published in his Narratio, Kepler's rendition of Galileo's anagram then prodded other mathematicians (like Harriot) to come up with further ‘centrifugal’ solutions. John North, The Universal Frame, London: Hambledon Press, 1989, pp. 119–120.

43 Weirdly, if Galileo had not completed the observations by the time the hypothetical competitor announced the discovery of the phases of Venus, then Galileo's disclosure of the cipher to reclaim priority would have amounted, in a sense, to a well-covered-up case of plagiarism. Galileo, in fact, would have used the pre-existent cipher to claim as his a discovery he had not yet completed.

44 Modern electronic publication technologies can make the delivery of a claim almost instantaneous and almost global. But even those publication models that do not involve the peer review of the work (and thus avoid the possibility of appropriation by reviewers) cannot change the time needed to produce the claim to begin with. They cannot, therefore, eliminate the porous predicament in which the claim grows prior to publication.

45 Isaac Newton, The Correspondence of Isaac Newton, 7 vols. (ed. H.W. Turnbull et al.), Cambridge: Cambridge University Press, 1959–1977, vol. 2, pp. 110–129. Newton's approach resembles Huygens's decision to communicate the invention of the spring watch in a cipher to Oldenburg, except that in this case Newton asked Oldenburg not to publish in the journal but to forward it to Leibniz in a private letter. That letter was forwarded to Leibniz on 2 May 1677. Henry Oldenburg, The Correspondence of Henry Oldenburg, vol. 13 (ed. and tr. Rupert Hall and Marie Boas Hall), London: Taylor & Francis, 1986, pp. 267–269. Once unscrambled, the anagram read: ‘Data aequatione quotcunque fluentes quantitates involvente, fluxiones invenire et vice versa’ – ‘Given an equation involving any number of fluent quantities to find the fluxions, and vice versa.’ On the exchange, see Hall, A. Rupert, Philosophers at War: The Quarrel between Newton and Leibniz, Cambridge: Cambridge University Press, 1980, pp. 62–69CrossRefGoogle Scholar.

46 Another hybrid was the short-lived attempts by academies to standardize the use of anagrams and their length to register and communicate discoveries discussed in Iliffe, op. cit. (8), pp. 35–36. There is a clear trend toward descriptive anagrams in Huygens and Hooke, in contrast with the more metaphorical ones used by Galileo.

47 The Royal Society of London started using them in February 1668. Iliffe, op. cit. (8), p. 35. Their adoption by the Académie des sciences in Paris is discussed in Pierre Berthon, ‘Les plis cachetés de l'Academie des Sciences’, Revue d'histoire des sciences (1986) 39, pp. 71–78; and Saunders, Stewart, ‘The archives of the Academie des Sciences’, French Historical Studies (1978) 10, pp. 696–702CrossRefGoogle Scholar.

48 While it was up to the author to unseal or unscramble the claim, it was understood that if one took too long to do that, s/he would effectively relinquish priority. (I owe this point to an anonymous BJHS referee). In 1860 the Académie des sciences claimed the right to open unclaimed notes after one hundred years. Berthon, op. cit. (47), p. 72.

49 Despite the fact that in 1860 the Académie des sciences claimed the right to open unclaimed notes after one hundred years, many of them remain unsealed in the archives. Berthon, op. cit. (47), p. 72. Unlike earlier cipher-based systems, the sealed note had a supplemental relation to publication. If you sent out a cipher, people expected you to solve it at some point, but that expectation did not apply to the sealed note. The sealed note was not necessarily the first step in the process of making claims public (as I think many or most of the early ciphers were), but rather an ‘insurance policy’ on the priority of one's claim – an insurance one hoped never to use.

50 Like modern provisional applications, caveats described the invention but did not spell out the claims, thus creating some leeway in which they could be written later on. Neither caveats nor temporary applications involve examination, thus making them function only as evidence of priority, like an early modern sealed note, or an anagram. Provisional applications are not published, thus making them function like sealed notes. Ian Cockburn, ‘A provisional application – an important tool in the right hands’, at www.wipo.int/sme/en/documents/prov_application.html.

51 The recipients of early anagrams did not need to be competent in the discipline related to the claim. Their role was that of time-stampers, not evaluators. Unlike the members of academies who gathered together to testify experiments as part of their ‘form of life’, being a witness to a priority claim delivered in an anagram was not a voluntary act. The former may be seen as colleagues, but the latter should not. The recipients of the anagrams were turned into witnesses by the very fact of receiving a letter containing a cipher.

52 Based on a preliminary search, I have found no evidence of the continuing use of ciphers for priority purposes in the eighteenth century. I therefore tend to agree with David Brewster's remarks, written in 1847: ‘The disadvantages of the Anagram as a secret receptacle for scientific truth, must have been long ago perceived; and we believe, it has been seldom, if ever, used in the last or the present century’. [Brewster], op. cit. (38), p. 242.

53 There was a similar trend in patent law where the right to patent was eventually attributed to the person to first file a patent application, but who may or may not have been the first to come up with the invention. The US was the only important exception to the ‘first-to-file’ rule, but that changed in 2011 with the reform of the patent code that brought the US into alignment with all other countries.

54 Warren O. Hagstrom, ‘Gift giving as an organizing principle in science’, in Barry Barnes and David Edge (eds.), Science in Context: Readings in the Sociology of Science, Cambridge, MA: MIT Press, 1982, pp. 21–34.

55 Alex Csiszar, ‘Broken pieces of fact: the periodical press and the search for scientific order in nineteenth-century France and Britain’, PhD dissertation, Harvard University, 2010, AAT 3435324, Chapter 4, ‘The literature search and the machinery of scientific periodicals’.

56 Nick Kollestrom's ‘Neptune's discovery: the British case for co-prediction’, at www.dioi.org/kn/neptune/index.htm, is an excellent resource for both the documents and the historiography of the dispute.

57 If one construed ‘discovery’ as the act of seeing Neptune, then Galle was the discoverer, not Leverrier or Adams.

58 Arago quoted in [Brewster], op. cit. (38), p. 229. Though less sanguine than Arago, Biot took the same position: ‘The laurel which you [Adams] have been the first to deserve has been merited also by another, who has carried it off before you had the courage to seize it. The discovery belongs to him, who proclaimed and published it to all, while you reserved the secret to yourself.’ Biot cited in [Brewster], op. cit. (38), p. 230.

59 Csiszar, op. cit. (55), p. 29.

60 Loi Relative aux Decouvertes utiles, & aux moyens d'en assurer la proprieté à ceux qui seront reconnus en etre les Auteurs. Donnée à Paris, le 7 Janvier 1791, Paris: Imprimerie Royale, 1791. See also Biagioli, op. cit. (30), pp. 1131, 1134–1138. Brewster too invoked patent law, claiming that, in the absence of an international agreement about how to handle priority claims in science, one should look at the law regulating inventions. [Brewster], op. cit. (38), p. 237. Contarary to Arago, who compared Adams to an inventor who kept his invention secret, Brewster stated that Adams's disclosure of his discovery met the legal definition of public invention: ‘The disclosure of an invention to only one person is not held in law to be publication, but the disclosure of it to two persons has been so held, and the patent subsequently obtained was reduced … The principle of law, therefore, on which these decisions rest, is, that an invention or discovery, communicated to more than one person, or placed within the view or knowledge of the public, even though they have not seen or known it, is published to such an extent, that no future inventor or discoverer can claim any right of a beneficial character. It extends even further than this: the public are held to be so thoroughly in possession of it, that the very original inventor or discoverer cannot afterwards take out a patent, because every patent right is granted as a compensation for a secret not in previous possession of the community. Now, in the case of Mr Adams, his discovery was known to various persons in Cambridge, and was freely communicated to two public functionaries, for the very purpose of giving to the public the benefit of his discovery’. [Brewster], op. cit. (38), p. 238. However, after establishing to his satisfaction that Adams's disclosure amounted to publication according to patent-law standards, Brewster proceed to say that, in effect, it did not matter anyway: ‘but supposing that Mr Adams had communicated his discovery as a secret to Mr Challis and the Astronomer-Royal only … his claim to be the theoretical discoverer of the new planet became an established truth’. [Brewster], op. cit. (38), p. 233). Or: ‘Had [Adams] even kept it secret, or embalmed it, according both to French and English custom, in the folds of a secret packet … would still have been the same.’ [Brewster], op. cit. (38), p. 217. That, however, would have turned Adams's claim into a trade secret, not a ‘publication’ according to patent law. Brewster's double standards about what publication means in patent law and science may indicate how much he is still operating within early modern concepts of priority.

61 Berthon, op. cit. (47), p. 72.

62 [Brewster], op. cit. (38), p. 233.

63 [Brewster], op. cit. (38), pp. 239–241, 242.

64 [Brewster], op. cit. (38), p. 217. On Adams's publication see pp. 232–233.

65 The method is up to the discoverer because s/he is not seeking rewards for it from an institution.

66 [Brewster], op. cit. (38), pp. 235, 237. In particular Brewster argues that the ‘new law’ is being imposed by Arago (and the Paris Académie) without any legislative process or ratification by any other academic authority.

67 [Brewster], op. cit. (38), p. 236.

68 [Brewster], op. cit. (38), p. 243.

69 [Brewster], op. cit. (38), p. 235.

70 Because of their location and status, more provincial or amateur practitioners were likely to have their work rejected by those who controlled the major journals – people ‘whose pleasure and duty it is to verify and pursue’ their claims – thus rendering priority registration more difficult. [Brewster], op. cit. (38), p. 236.

71 [Brewster], op. cit. (38), p. 236.