Friday, August 18, 2006

Mossoff on Patents as Constitutional Property

Adam Mossoff (Michigan State University College of Law) has posted Patents as Constitutional Private Property: The Historical Protection of Patents under the Takings Clause on SSRN.  Here's the abstract:

Conventional wisdom maintains that early courts never secured patents as constitutional private property under the Takings Clause. In examining long-forgotten judicial opinions and legislative records, this Essay reveals that this is a profoundly mistaken historical claim. Nineteenth-century courts, securing to inventors the fruits of their labors, enthusiastically applied the Takings Clause to patents. It is striking that this historical development in both constitutional law and patent law has become obscured to modern courts and scholars. This Essay thus concludes with a possible answer to this conundrum, drawing upon the intellectual history of property theory. Ultimately, the eclipse of the nineteenth-century patent takings jurisprudence may be an unintended consequence of the legal realists' radical transformation of property theory at the turn of the last century.

This intellectual history is important because it exposes the pervasive misunderstanding of the history concerning two significant constitutional provisions - the Takings Clause and the Copyright and Patent Clause. Courts and scholars can no longer rely on the conventional wisdom to conclude that patents are not protected under the Takings Clause, or that this issue is novel and uncertain. Doctrinally, this Essay also uncovers a venerable jurisprudence grappling with constitutional limits on the government pirating patented inventions, which is settled law that courts would use in regulatory takings analyses today. As patented drugs and other inventions are increasingly the subject of regulations, this Essay establishes that the constitutional and policy issues inherent in these governmental actions are not new. Courts have long embraced patents as constitutional private property.

Mossoff's essay adds important new (or, more accurately, old) ideas to the current debate over the taking of patents.  The issue can be conceptually difficult because patents are created by federal statute, so it can be argued that because the government creates patents it can infringe or destroy them without incurring takings liability.  Mossoff discusses a number of earlier cases that held that patents were constitutional property, but that have been absent from the discussion in recent scholarship and cases on this issue.  A very interesting paper.

Ben Barros

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