Who Cares What Thomas Jefferson Thought about Patents - Reevaluating the Patent Privilege in Historical Context

Cornell Law Review Volume 92 Issue 5 July 2007 Article 2 Who Cares What Thomas Jefferson Thought about Patents - Reevaluating the Patent Privilege in Historical Context Adam Mossoff Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Adam Mossoff, Who Cares What Thomas Jefferson Thought about Patents - Reevaluating the Patent Privilege in Historical Context, 92 Cornell L. Rev. 953 (2007) Available at: http://scholarship.law.cornell.edu/clr/vol92/iss5/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact . WHO CARES WHAT THOMAS JEFFERSON THOUGHT ABOUT PATENTS? REEVALUATING THE PATENT "PRIVILEGE" IN HISTORICAL CONTEXT Adam Mossofft Conventional wisdom holds that American patents have always been grants of special monopoly privileges lacking any justification in natural rights philosophy-a belief based in oft-repeated citations to Thomas Jefferson's writings on patents. Using "privilege" as a fulcrum in its analysis, this Article reveals that the history of early American patent law has been widely misunderstood and misused. In canvassing primary historical sources, including the Founders' writings, congressional reports, long-forgotten court decisions, and political and legal treatises, this Article explains how patent rights were defined and enforced using the social contract doctrine and the labor theory of property of naturalrights philosophy. In the antebellum years, patents were civil rights securing important property rights-what natural-rights-influenced politicians and jurists called "privileges." This intellectual history situates the Copyright and Patent Clause, the early patent statutes, and nineteenth-century patent case law within their appropriatepolitical and constitutional context. In doing so, it resolves many conundrums arisingfrom misinterpretation of the historical patent privilege. Doctrinally, it explains why Congress and courts in the early nineteenth century expansively and liberally construedpatent rights, and did not limit patents in the same way they narrowly construed commercial monopoly grants such as bridgefranchises. It also exposes the nearly universal misuse of history by lawyers and scholars who rely on Jefferson as an undisputed t Associate Professor of Law, Michigan State University College of Law. J.D., University of Chicago; M.A., Columbia University; B.A., University of Michigan. Many thanks to Robert G. Bone, Thomas A. Bowden, Michael A. Carrier, Eric R. Claeys, John Duffy, Richard A. Epstein, Timothy Holbrook, Roberta R. Kwall, Mark Lemley, Michael Madison, Thomas Nachbar, Craig A. Nard, David Post, Joshua Sarnoff, Eugene Volokh, and Edward C. Walterscheid for their comments, as well as workshop participants at Case Western University School of Law, the University of Chicago Law School, the George Washington University Law School, and Whittier Law School. In the past two years, conference attendees at the American Society for Legal History 2005 Annual Meeting, the Intellectual Property Scholars Conference at DePaul University College of Law, and the Works-in-Progress Intellectual Property Colloquia at Boston University School of Law and Washington University School of Law in St. Louis were sources of important feedback. Lastly, a special thank you to Katherine Strandburg, who invited the author to present this Article as an Edward D. Manzo Scholar in Patent Law at DePaul University College of Law. Rose Willis and the MSU College of Law Library provided invaluable research assistance. As always, Amy Mossoff was a vitally important source of feedback on my research and writing. 953 954 CORNELL LAW REVIEW [Vol. 92:953 historical authority to critique expansive intellectualproperty protections today. Ultimately, the conventional wisdom is a historicalmyth that obscures the early development of American patent law under the meaningful guidance of natural rights philosophy. INTRODUCTION .................................................... I. THE JEFFERSONIAN STORY OF PATENT LAW................. 954 959 A. The Supreme Court's Creation of the Jeffersonian Story of Patent Law ................................. 960 B. The Scholars' Embrace of the Jeffersonian Story of Patent Law ......................................... 963 II. RECONSTRUCTING THE HISTORICAL CONTEXT OF THE PATENT PRIVILEGE ......................................... 967 III. A. Privilege ............................................ B. The Patent Privilege in The Federalist No. 43 and Wheaton............................................. 1. NaturalRights, Social Contract Doctrine, and The Federalist No. 43 ..................... ......... 2. Wheaton v. Peters and Patents as Privileges....... 969 THE PATENT PRIVILEGE IN EARLY AMERICAN PATENT LAw . 989 977 977 985 A. Patents as Privileges in Nineteenth-Century Case L aw ................................................ 990 B. The Framing of Patent Privileges as Property Righ ts .............................................. 992 C. The Nineteenth-Century Expansion of Patent Privileges ........................................... 998 1. The Expansive Construction of Patent Privileges by Courts........................................... 998 2. The Reissue Right ................................ 1001 3. Patent Term Extensions ........................... 1004 IV. THE HIsTORIA. PATENT PRIVILEGE REDISCOVERED: IMPLICATIONS FOR TODAY ................................. 1009 CONCLUSION ................................................... 1011 INTRODUCTION In 1966, the Supreme Court discovered that Thomas Jefferson was the founder of American patent law. In Graham v. John Deere Co.,' the Court first invoked Jefferson's words that the "embarrassment of an exclusive patent" was a special legal privilege justified only because these "monopolies of invention" served the "benefit of society." 2 Jefferson continued to make guest appearances in Court decisions for 1 2 383 U.S. 1, 7-11 (1966). Letter from Thomas Jefferson to Isaac McPherson (Aug. 13, 1813), in 13 THE WRITINGS OF THOMAS JEFFERSON 326, 334-35 (Andrew A. Lipscomb ed., 1903) [hereinafter Letter to Isaac McPherson]. 2007] REEVALUATING THE PATENT "PRiVILEGE" 955 the next two decades,3 leading patent law scholars to remark recently that Jefferson's "views . . . have proven influential, especially in the Supreme Court."4 Following the Court's practice, intellectual property scholars, especially those engaged in the increasingly rancorous debate over rights in digital content on the Internet, invoke Jefferson's words as an unassailable historical axiom. 5 Jefferson's hegemony over the history of American patent law is as indisputable as it is wrong. In us (...truncated)