Why History Matters in the Patentable Subject Matter Debate

In America’s First Patents, Michael Risch proves that nothing beats the facts when it comes to making or assessing claims about the history of patentable subject matter doctrine. Of course, one might ask why we should care about history, especially when justifying or critiquing legal rules that secure property rights in twenty-first-century innovation in high-tech computers or biotech. It’s a fair question

Is Copyright Property?

This essay is based on commentary on Richard Epstein\u27s article, Liberty vs. Property: Cracks in the Foundation, which was delivered at a 2003 conference. The essay suggests that the opponents of Epstein\u27s position that copyright entitlements are derived from similar policy concerns as tangible property rights would reject his thesis at the conceptual level, maintaining that copyright is not property, especially in the context of digital media. By assuming their rallying cry that copyright is policy, not property, this essay reveals that opponents of digital copyright are caught in a dilemma of their own making. In one sense, their claim that copyright is policy, not property, is an uninformative truism about all legal entitlements, and in another sense, represents a fundamental misconception of the history and concept of copyright. The concept and historical development of copyright are more substantial than its representation today as merely a monopoly privilege issued to authors according to the government\u27s utility calculus. The essay concludes with the observation that those who wish to see copyright eliminated or largely restricted in digital media are in fact driven by an impoverished concept of property that has dominated twentieth-century discourse on property generally. As a doctrine in transition - we are still in the midst of the digital revolution - copyright may be criticized for various fits and starts in its application to new areas, but the transition itself does not change copyright\u27s status as a property entitlement

The Trespass Fallacy in Patent Law

The patent system is broken and in dire need of reform; so says the popular press, scholars, lawyers, judges, congresspersons, and even the President. One common complaint is that patents are now failing as property rights because their boundaries are not as clear as the fences that demarcate real estate—patent infringement is neither as determinate nor as efficient as trespass is for land. This Essay explains that this is a fallacious argument, suffering both empirical and logical failings. Empirically, there are no formal studies of trespass litigation rates; thus, complaints about the patent system’s indeterminacy are based solely on an idealized theory of how trespass should function, which economists identify as the “nirvana fallacy.” Furthermore, anecdotal evidence and other studies suggest that boundary disputes between landowners are neither as clear nor as determinate as patent scholars assume them to be. Logically, the comparison of patent boundaries to trespass commits what philosophers call a “category mistake.” It conflates the boundaries of an entire legal right (a patent), not with the boundaries of its conceptual counterpart (real estate), but with a single doctrine (trespass) that secures real estate only in a single dimension (physical fences). As all law students learn in their first-year Property courses, estate boundaries are defined along the dimensions of time, use, and space, as represented in doctrines like future interests, easements, nuisance, and restrictive covenants, among others. The proper conceptual analog for patent boundaries is “estate boundaries,” not fences. In sum, the trespass fallacy is driving widely accepted critiques of today’s patent system that are empirically unverified and conceptually misleading

Patents as Commercial Assets in Political, Legal and Social Context

Reviewing Christopher Beauchamp, Invented by Law: Alexander Graham Bell and the Patent that Changed America (Harvard University Press 2015)

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

The 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\u27s 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 political and legal treatises, Founders\u27 writings, congressional reports, and long-forgotten court decisions, it explains how patent rights were defined and enforced under the social contract doctrine and labor theory of property of natural rights 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 appropriate political and constitutional context. In so doing, it resolves many conundrums arising from misinterpretation of the historical patent privilege. Doctrinally, it explains why Congress and courts in the early nineteenth century expansively and liberally construed patent rights, and did not limit patents in the same way they narrowly construed commercial monopoly grants, such as bridge franchises. It also exposes the near-universal misuse of history by lawyers and scholars today, who rely on Jefferson as undisputed historical authority in critiquing expansive intellectual property protections today. Ultimately, the conventional wisdom is a historical myth that obscures the early development of American patent law under the meaningful guidance of natural rights philosophy

Rethinking the Development of Patents: An Intellectual History, 1550-1800

The history of patents begins, not with inventions, but with royal grants of industrial monopolies in the fifteenth century. By the end of the eighteenth century, however, patents represent a legal right to property in a novel mechanical or scientific invention. Commentators today maintain that this radical shift from royal monopoly privilege to legal property right occurred solely in response to economic or institutional demands. While political, economic and institutional conditions certainly played a role in this story, this Article maintains that the ideas of John Locke were the true fountainhead behind the evolution of patents. Although there were fits and starts toward a new patent doctrine in the seventeenth century, the watershed moment occurred when the common law courts acquired jurisdiction over patents from the Privy Council in the mid-eighteenth century. The common law judgeslearned men steeped in the traditional rights of Englishmen and the philosophy of natural rights-redefined the doctrine of patents by drawing upon the ideas that formed the basis of their own political and legal philosophy. The result was the novelty and the specification requirements, which are first described by Lord Mansfield and Justice Buller in terms that reflect John Locke\u27s labor theory of property and social contract theory. In surveying the historical record, i.e., in looking at the ways in which royal councilors, judges and inventors conceived of patents between 1550 and 1800, the influence of Locke\u27s ideas upon this important legal doctrine is evident. This provenance of patent law thus suggests that an inventor\u27s moral right to the property in one\u27s invention should play a role in the ongoing debate concerning the protections afforded by the patent laws