PATENT ORIGINALISM.

• Author: Epstein, Richard A.

CONTENTS INTRODUCTION I. CAUTIOUS ORIGINALISM II. ARE PATENTS REGULATED BY NATURAL LAW? III. THE PARTICULARS OF THE PATENT CLAUSE A. To Promote the Progress of Sciences and the Useful Arts B. "By securing ... the exclusive right." C. Limited Terms CONCLUSION INTRODUCTION

The Patent and Copyright Clause--the choice of name is itself instructive--is the source of many interpretive and practical difficulties. Like all clauses of the Constitution, it is short, and it is precisely in its brevity that much of its difficulty arises. Thus, the familiar clause reads:

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[.] (1)

As the title to this article indicates, I shall engage in some sort of a quasi-originalist inquiry into the proper interpretation of this clause, in an effort to find out how it was understood during the founding period. I shall largely restrict myself to the patent line of cases. The evidence will in some cases go beyond that period to cover nineteenth-century cases which offer an accurate reflection of the earlier thinking, insofar as they exhibit no intention to alter the law from the way in which it was originally formed. The issue is of no little importance because the recent decisions of the United States Supreme Court have tended to take a restrictive view of the rights of patentees, and the protection of patents under the law. Both Mayo Collaborative Services v. Prometheus Laboratories (2) and Alice Corp. v. CLS Bank International (3) gave narrow accounts of the class of potential inventions that should be regarded as patent-eligible under Section 101 of the Patent Act, (4) in the case of medical tests on the one hand, and financial analysis on the other. (5) The case of Oil States Energy Services, LLC v. Greene's Energy Group, LLC (6) holds that a patentee is not entitled to a jury trial in an Article III court to determine patent validity in an infringement action if the defendant moves the adjudication before the Patent Trial and Appeal Board (which is staffed by administrative judges appointed by the head of the Patent and Trademark Office). (7) Finally, eBay Inc. V. MercExchange, LLC (8) imposes important limitations on the ability of a patent holder to obtain an injunction, even in the case of deliberate patent infringement. (9)

The explanation for these diverse patent-restrictive decisions all stem in large part from the deep convictions of patent skeptics on the Supreme Court, backed by many industry and academic supporters, who believe that patent rights are to some extent second-class rights that are not entitled to the level of protection that is associated with the ownership of land, chattels, or animals, which have an indubitable common law heritage. (10) It is important to note the rejection of this second-class status for patents (and copyrights) should not be regarded as equivalent to the proposition that these rights are absolute in all respects, because statements of that sort are not true of land or of any other forms of tangible property rights. The overall system of property rights is highly sensitive to the types of assets in play, even in cases where both assets are tangible--for example, the property rules for water are different from those for land. In addition, under the standard definitions, the exclusive rights to possession, use, and disposition (11) are still subject to abridgment in cases of necessity. (12) Such rights are also capable of transformation with changes in technology, as with the transformation of air rights when the upper air space, which formerly had no value, became useful for transformation. (13) This topic deserves an extensive treatment of its own. (14) All of these transformations may happen with different forms of intellectual property, but this entire ethos of transformation does not make sense if the exercise of the patent power is treated as a general right to exclude, without embracing the ability to alienate and license, or as a government subsidy that can be offered and removed at will. The originalist account does not purport to deal with every permutation in how patent rights are assigned and developed. But it does impose this important set of guard rails against the total elimination of patent protection by legislative or administrative action.

Property rights in these material assets are widely regarded as having a natural law grounding insofar as their creation is said to antedate the rise of the state and its enforcement of property rights, which is an essential feature of the Lockean tradition under which property rights come from below, after which they are protected by the state. (15) That position resonates with Madison's general statement about the relationship of copyright to patent in Federalist 43, which reads:

The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress. (16) The common law foundations for copyright were adjudicated at great length in Millar v. Taylor, (17) and Madison's observation is that now that patents and copyrights are linked together in the same clause, the same level of protection for the same reason should be given to patents. That protection should be at the federal level because it is far more efficient to offer intellectual property protection once throughout the United States instead of doing so by multiple arguably inconsistent state laws. Federalist No. 43 also resonates with James Madison's short 1792 essay in the National Gazette, Property, (18) which refers to "that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual." (19) Madison's essay does not mention intellectual property, but it does advert to Blackstone's famous definition of property in the first sentence. (20)

Against that position is the famous letter of Thomas Jefferson that made this oft-quoted remark: "[I]t would be curious then if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property." (21) But if it is not the "fermentation" of any given mental state that is protected; it is the durable plan and description of the invention that derives from that mental effort. To be sure, natural law theory could not provide the institutional arrangements needed to protect intellectual property, which is one reason why it makes sense to call these rights "created" rather than "inherent." Moreover, Edward Walterscheid is surely correct when he notes that the Constitution did not obligate the federal government to create either patent or copyright protection, but only authorized the creation of these rights (22)--which is how the text, which describes a power of Congress, reads. Put otherwise, there was no common law or constitutional right to obtain a patent, which was a "privilege" from the government. (23) But Madison used the explicit analogy between patents and copyrights to supply the intellectual ammunition to explain why in constitutional terms it was thought necessary to have a constitutional vehicle for the protection of both sets of rights. And it is surely noteworthy that at no time in our Constitution's history has Congress ever declined the invitation to legislate pursuant to its constitutional power.

It is therefore not surprising that the natural law definitions of property rights did influence state law protections for intellectual property prior to the adoption of the Constitution. The direct cases dealing with this issue again come from copyright law, under statutes that make explicit reference to the natural law tradition. (24) Thus, in 1783 Connecticut passed an "Act for the encouragement of literature and genius" that was explicitly rooted in natural law principles. (25) The Massachusetts Act of the same year "for the Purpose of securing to Authors the exclusive Right and Benefit of publishing their Literary Productions for Twenty-one years," invoked both natural rights theory and the desirable incentive effects of property in the same breath. (26) Similar language is found in the Virginia Law of 1785 and the New York Law of 1786. (27) These statutes have language parallel to Article I, Section 8, Clause 8.

On the basis of these early decisions Paul Clement, in his recent article Patent Rights vs. Property[TM] explicitly draws a sharp contrast between property rights and patent protection in order to explain and justify the reduced level of protection offered in recent Supreme Court cases, especially Oil States. (29) I believe that all of those Supreme Court cases and similar decisions represent a serious break from a sound view of patents that make them a subclass of property rights--which can and should be enforced on a par with other forms of property rights once a particular patentee has received a patent grant. (30) The simplest statement of the argument is that under Article I, Section 8, Clause 8, the government has the power to either grant or not grant patents in any particular case. (31) Indeed, in 1790 the United States did not have to enact any Patent Act at all, but it in fact affirmatively enacted the first Patent Act. (32)

There is, however, this huge caveat. Once the government issues a patent, that patent becomes--full stop--a form of property on a par with other forms of property, in part because the grant is in harmony with the natural law tradition that...