AuthorD'Andrea, Nicholas A.


On May 22, 2019, Senators Thorn Tillis and Chris Coons introduced draft text for legislation that would reform a hotly contested area of patent law: 35 U.S.C. [section] 101. (1) Reactions to the proposed legislation drew mixed support from intellectual property stakeholders. (2) However, most of the commentary on the draft text largely lacked any analysis of the proposed additions to [section] 100, (3) which read: "The term 'useful' means any invention or discovery that provides specific and practical utility in any field of technology through human intervention." (4)

This addition of "human intervention" seems like an unassuming proposal. However, even though it may not have been intended, this concept may provide an opportunity for understanding patent law through a natural law jurisprudence. Patent law is traditionally understood through a purely statutory lens. Indeed, patent law in the United States is established by the Constitution (5) and governed completely by Chapter 35 of the United States Code. However, I argue in this Note that the principles of natural law, including the concepts of order and morality inherent in the natural world, are ripe for application to subject matter eligibility jurisprudence under Chapter 35, Section 101 ("Section 101"). Specifically, I contend that granting patent rights under the rationale that these rights foster economic innovation severs patent law from the concepts of justice inherent in private property rights and the natural law.

Before approaching patent law, it is important to understand the natural law and its relationship to private property. Thomas Aquinas states that private property is not contrary to the natural law, but "because the division of possessions is not according to the natural law, but rather arose from human agreement which belongs to positive law," these divisions are "necessary to human life." (6) He outlines the common benefit of allowing private property rights: "The... thing that is competent to man with regard to external things is their use. On this respect man ought to possess external things, not as his own, but as common, so that, to wit, he is ready to communicate them to others in their need." (7)

Such a communal-based framework is key to an understanding of the necessity for strong patent rights in the modern age. Supreme Court precedent since Mayo v. Prometheus Laboratories (8) and Alice v. CLS Bank (9) has established significant hurdles between software inventors and patents on their inventions. Alice notably changed a historically low bar for patent eligibility under Section 101. Section 101 states: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." (10)

This section appears facially broad. But Justice Thomas, writing for a unanimous Court in 2014, held in Alice that a computer implementation of an abstract concept is not an "inventive concept" sufficient to "'transform' the claimed abstract idea into a patent-eligible application." (11) This focus of on transformation of an abstract idea into something patent eligible, however, is a step beyond the purpose behind Section 101, which is to determine what things are patentable inventions versus what are not (i.e., subject matter eligibility). I argue in this Note that when viewed through the lens of natural law and private property rights, the subject matter eligibility analysis should consider the fact that inventions benefit the common good, and thus they warrant exclusive property rights. I further consider evidence of historical precedent for this view, but argue that this focus has since been lost. But a recognition of certain natural law principles in future patent law legislation may assist in the recognition of property rights that are due inventors.

Though one scholar has directly suggested an implementation of Thomas Aquinas's natural law concepts to United States patent law, (12) that proposal has not been analyzed in light of modern patent law subject matter eligibility jurisprudence. In Part I of this Note, I trace the origins of natural law and natural rights in patents through English and United States legal history. In Part II, I outline the philosophical principles of natural law and natural rights necessary for understanding patent law. In Part III, I highlight the deemphasis of property rights in patent law, including in cases such as Alice and Oil Slates, (13) and propose that that subject matter eligibility should be reoriented by a legislative fix that emphasizes "human intervention."


    A. Detecting the Natural Law in Early Patent Common Law

    Since ratification, the United States Constitution has provided a limited right to inventions. (14) However, comparatively little has been written on the history of its inclusion. (15) According to one commentator, "[t]he reason for the dearth of commentary undoubtedly is that so little is actually known about how its inclusion came about." (16) The inclusion seems to have derived at least in part from a desire to follow the English system of granting exclusive rights to inventors. (17) The origin of this English legal protection, however, has a fascinating and contentious history.

    Patents, or "letters patent," were provided by the Crown as a tool of furthering royal policies. (18) Letters patents were granted to individuals in a particular industry to provide a de facto monopoly on a particular area of trade. (19) These grants began initially as privileges granted by the Crown over particular methods of trade. (20) The grants included, for example, the right to hold a fair or a market or the right to charge for goods passing through a town. (21) The Crown, over a time period between the 1500s and 1600s, subsequently expanded these privileges to selling rights. (22) For example, the Crown may have granted an individual the exclusive right to sell goods such as salt or leather within a geographic area. (23) While the first monopolies over trade were relatively uncontroversial, the resulting expansion drew critics. (24) This criticism came to a head thanks to Sir Edward Coke.

    Coke strongly held the belief that the common law prohibited monopolies. (25) In his report of the case Darcy v. Allen, known as the Case of Monopolies, Coke highlights how the court found that monopolies were against statutes and the common law. (26) Though there was no written opinion issued by the court there, Coke represented Darcy (and the Queen) as Attorney General. His reports include indications of arguments reportedly well-received by the jurists. (27) Darcy had been granted by the Queen an exclusive license over the import and sale of playing cards. (28) The grant, the justices reasoned, was contrary to the common law for being contrary to the restriction of trade. (29)

    How does this common-law prohibition on letters patent relate to the natural law? Sir William Blackstone, documenter of the common law, believed that "natural law imposed basic duties to God, to oneself and to one's neighbor and that municipal law added further duties of citizenship." (30) These concepts of the common good in the natural law were generally only applied directly in cases when the common law was silent. (31) In the case of Darcy, the reports indicate that the court relied on both cases and statutes to support its rationale. (32) But reference to the common good was not left out. Specifically, one report stated: "The ordinance of God is, that every man should live by labour, and that he that will not labour, let him not eat." (33) Further, "that for the good of the realm: that in such cases the King may grant to him a monopoly patent for some reasonable time, until the subjects may learn the same, in consideration of the good that he doth bring by his invention to the commonwealth: otherwise not." (34) Coke's reports likewise indicate that the justices believed that restriction of trade in part "agrees with the equity of the law of God," since it "tends to the impoverishment of divers artificers and others, who before, by the labour of their hands in their art or trade, had maintained themselves and their families, who now will of necessity be constrained to live in idleness and beggary." (35) Thus, the grant of monopolies were contrary to the natural law.

    Though monopolies (i.e., "letters patents") were found contrary to natural law, however, patents on inventions were explicitly legally exempted from this prohibition. Even the counsel for Allen specifically acknowledged that, despite any common-law prohibition on granting patents generally, the Crown had the ability to grant patents for inventions. (36) The Darcy court agreed, and indicated that articles of invention were excluded from the illegal grant of monopolies: "[A]ll monopolies, grants, letters patent, and licenses, for the sole buying, selling, and making of goods and manufactures, are declared void, except... this does not extend to... inventors of new manufactures." (37)

    Considering which side of the "v" Coke represented in Darcy, it is somewhat ironic that he eventually drafted and introduced the Statute of Monopolies in parliament some 20 years later, which effectively solidified the ban of monopolies in England. (38) There, however, patents on inventions were again protected by parliament. When it was passed, an explicit exemption was carved out for inventors: "Provided nevertheless... [the Statute] shall not extend to any letters patents and grants of privilege for... the sole working or making of any manner of new manufacture within this realm, to the first and true inventor or inventors of such manufactures." (39) Though there is a contemporaneous debate over whether patent rights are considered monopoly rights, (40) language in the current United...

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