Patent

• Author: Donald S. Chisum
• Pages: 1880-1881

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Article I grants to Congress the 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." This clause confers on the federal government authority to provide for both patents and COPYRIGHTS.

United States patent law derives from the English experience. During Tudor times, English monarchs granted various monopolies (such as ones over salt) to royal favorites. The populace arose against the high prices charged by such monopolies. In 1623, Parliament enacted the germinal Statute of Monopolies. The statute declared monopolies void but as an exception allowed letters patent for fourteen years to the "true and first inventors" of "new manufactures."

In America, some states prior to adoption of the Constitution granted patents to inventors. But in listing the limited and specific powers of the federal legislature, the drafters of the Constitution agreed that patents and copyrights should be among those powers. As JAMES MADISON argued in THE FEDERALIST #43, "the States cannot separately make effectual provision for either." The drafters perceived that the interests of both a unified national

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economy and a strong system of incentives for invention required that a patent power lie in the federal government.

The constitutional power specifies both the end of the patent system (progress of the useful arts) and the means for achieving it (secure for a limited time to inventors the exclusive right to their discoveries). The power is only an enablement and does not of its own force create any patent rights. Nevertheless, the first Congress in 1790 enacted a patent statute. An 1836 statute revised the patent laws and created the Patent Office. A 1952 statute restated the patent laws in their current form. An inventor of a new and useful product or process may obtain from the Patent Office a patent granting for a number of years (currently seventeen) the right to exclude others from making, selling, or using the invention defined by the claims in the patent.

Although most questions concerning patentability are defined by statute, the Constitution limits Congress's power to authorize patent monopolies. In Graham v. John Deere Co. of Kansas City (1966), the Supreme Court stressed that Congress may not authorize patents that "remove existent knowledge from the...