Statutes, Common Law Rights, and the Mistaken Classification of Patents as Public Rights

• Author: Adam Mossoff
• Position: Professor of Law, Antonin Scalia Law School, George Mason University
• Pages: 2591-2616

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2591

Statutes, Common Law Rights, and the

Mistaken Classification of Patents

as Public Rights

Adam Mossoff*

ABSTRACT: Patents are increasingly swept up into the operations of

agencies in the modern administrative state. This has raised anew the

fundamental question whether patents are private property rights or special

privileges (“public rights”), because this determines how constitutional

guarantees apply to patents in administrative proceedings. In Oil States v.

Greene’s Energy, the Supreme Court held for the first time that patents are

public rights that may be canceled by an administrative tribunal solely

because patents are “creatures of statute.” This classification of patents as

public rights solely given their statutory provenance is profoundly mistaken.

Modern courts and commentators have misconstrued a heuristic used by

earlier courts in distinguishing between private rights and public rights. It

was only a heuristic because all legal rights share mixed origins in both

statutes and judicial decisions, including property rights in land and in

inventions. This Essay surveys these well-known sources of property rights in

both statutes and judicial decisions, revealing that conflating “common law”

with private property rights is legal myth, not historical fact. As cases

proliferate at the intersection of patent law, administrative law, and

constitutional law, it is a fundamental error to classify patents as public

rights in relegating vested private property rights to administrative processes

and decrees.

I.INTRODUCTION ........................................................................... 2592

II.A POTTED REVIEW OF THE PUBLIC RIGHT-PRIVATE RIGHT

DICHOTOMY (AND WHY IT MATTERS) ........................................ 2594

*

Professor of Law, Antonin Scalia Law School, George Mason University. Thank you to

Eric Claeys, Adam McLeod, Thomas Merrill, Joseph Singer, Hanoch Dagan, Thomas Mitchell,

and Adam White for comments. Thank you to the participants at the “Administering Patent Law”

Symposium at the University of Iowa College of Law and the Propert y Works in Progress

conference at Boston University School of Law for their feedback. Research assistance was

provided by Dylan Campbell, Jae Woo Chung, Timothy Frank, Olivia Gomez, and Stephani e

Neville.

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2592 IOWA LAW REVIEW [Vol. 104:2591

III.THE FRAMING OF PATENTS AS PUBLIC RIGHTS BY MODERN

COMMENTATORS AND COURTS ................................................... 2599

IV.THE MIXED NATURE OF STATUTORY AND COMMON LAW

RIGHTS IN LAND AND INVENTIONS ............................................. 2602

A.THE MIXED STATUTORY AND COMMON LAW NATURE

OF PROPERTY RIGHTS IN LAND .............................................. 2602

B.THE MIXED STATUTORY AND COMMON LAW NATURE

OF PROPERTY RIGHTS IN INVENTIONS .................................... 2609

V.CONCLUSION .............................................................................. 2615

I. INTRODUCTION

The relationship between property rights and the regulatory authority of

the federal or state governments has long been fraught with tension.1 This is

as true for property rights in inventions as it is for property rights in land or

other tangible assets. Even in the nineteenth century, patent owners

challenged the reach of state police power regulations over their property

rights.2

Although legal and constitutional analysis is often framed today in

consequentialist terms, courts define the scope of constitutional protection of

legal rights under the Constitution by a formal classification between public

rights and private rights.3 In the context of legal rights in property, public

rights are privileges such as monopolies granted by the political branches, and

thus there is greater discretionary authority to both define them and

adjudicate them according to political processes in Congress or in

administrative agencies in the Executive branch.4 Private rights are classic

1. See, e.g., Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 127 (1978) (holding

a historical preservation statute is not an unconstitutional taking of property without just

compensation); In re Jacobs, 98 N.Y. 98, 115 (1885) (holding a statute prohibiting manufacturing

cigars in residences in New York City and Brooklyn to be unconstitutional taking of property

without compensation); Wynehamer v. People, 13 N.Y. 378, 405–06 (1856) (holding a statute

prohibiting sale of alcohol to not violate due process rights but still unconst itutional because it

effects a taking of property without payment of just compensation).

2. See, e.g., Patterson v. Kentucky, 97 U.S. 501, 508–09 (1878) (affirming constitutionality

of a state’s regulatory authority under its police power to limit or restrict the sale of a patented

petroleum product).

3. See United States v. Jicarilla Apache Nation, 564 U.S. 162, 174 (2011) (“The distinction

between ‘public rights’ against the Government and ‘private rights’ between private parties is well

established.” (citing Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How. )

272, 283 (1856))).

4. See Ann Woolhandler, Public Rights, Private Rights, and Statutory Retroactivity, 94 GEO. L.J.

1015, 1020 (2006) (“In the latter part of the twentieth century, public rights took on a broad

connotation of constitutional or statutory claims asserted in the perceived pu blic interest against

government or regulated parties. The nineteenth century, however, conceived of public rights in