Wednesday, July 21, 2010
Neal Solomon has published A Short History of the Intellectual Property Clause: A Review of 19th and 20th Century Landmark Patent Cases. Here is the abstract.
The American patent system emanates from the intellectual property clause in Article I of the U.S. constitution. Over two centuries of Congressional Acts and court legal opinions have shown a pattern of supporting strong patent rights.
In contrast to the view that supports strong patent rights, the article shows a history of patent abolitionists in the nineteenth century and an anti-patent movement in the twentieth and twenty-first centuries that prefers weak patent rights. The patent critics share the view that patents block progress because of the exclusive right that prevents others from making, selling or using a patented invention. The patent critics prefer a system to encourage innovation that supports prizes. Most of the patent critic arguments focus on short term benefits to the occasionally successful inventor and completely ignore the ex ante risks and costs of invention and the long-run benefits of dynamic efficiency obtained by a strong patent system.
The article observes that prizes were used before patents were prominent in the nineteenth century and that there are limits to prizes. The insight of the founding fathers was to embed patent rights into inventions that will provide an opportunity for the inventor to commercialize the inventions. The success of the American patent system has produced waves of industrial success, illustrating that a strong patent regime is an economic necessity.
To deal with patent critics, the courts and Congress have constrained elements of the patent system when necessary. These limitations have addressed issues that balance the patent regime to protect the public interest but also to incentivize investment in scientific and technological research and to promote economic progress.
Download the paper from SSRN at the link.