The nation’s leading forum for conservative and libertarian legal scholarship.

The Founders and Patent Law


Posted on September 6th, by Jonah in Updates. No Comments

Patent law, traditionally thought by many to be a dull area of the law, has grabbed the legal spotlight recently. The recent patent infringement lawsuit between Apple and Samsung garnered daily headlines, and was dubbed the “Patent Trial of the Century” by the Wall Street Journal, among others. In another much-discussed lawsuit, Judge Richard Posner, sitting as a trial judge, recently dismissed Apple’s patent claims in a lawsuit against Google, as well as Google’s counterclaims.

Patent policy is an area that might appear tricky to conservatives and libertarians. If the government makes it easy for an individual or firm to obtain patents, does that spur competition and promote free enterprise, or does it constitute government intervention that favors a few? Given the difficulties, readers of this blog may be interested in the Founders’ views on patent law, given that the Constitution addresses, albeit quite briefly, the issue.

Article I, Section 8 states:
The Congress shall have Power…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Clearly, the Founders thought the government ought to be able to “secure” for inventors the “exclusive right” to reap benefits from their inventions for a period of time. But how widespread should this right be?

Such a question is difficult to answer. Charles Pinckney and James Madison, both delegates to the Constitutional Convention, each proposed somewhat different grants of power for Congress to have regarding patents. Their proposals were both referred to the Committee of Detail, which drafted what would become the Patents Clause. The Clause was approved by the Convention unanimously with no recorded debate. The delegates apparently did not question that the government ought to have the power to issue patents, but patent law was likely not foremost on the minds of the delegates, and they likely did not consider at the Convention what discoveries were deserving of patents.

Although one should be cautious in drawing conclusions when there is a lack of record, that the Convention unanimously approved the Patents Clause may indicate that the delegates expected Congress to issue patents in a similar fashion to how the states had been issuing them. After all, if they expected the Patents Clause to constitute a dramatic change in patent policy, such a change likely would have caused debate. At the time of the Convention, several states had patent statutes. Generally, an inventor seeking a patent had to petition the state legislature, and the legislature decided on a case-by-case basis whether to grant a patent. The effect of this process was that it was quite difficult to obtain a patent, and it was extremely rare that a patent was granted. Perhaps this indicates that the delegates to the Convention expected patents to be issued quite rarely, and only for important inventions.

However, given the paucity of debate over patents and intellectual property at the Convention, it is perhaps more likely that the delegates expected policy questions relating to patents to be dealt with by Congress after ratification. They inserted the Patents Clause in the Constitution to ensure that the government had the power to reward those who created beneficial inventions, but they left it to elected officials to determine when that power should be used. That job now falls to us.