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

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

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)

How Copyright Drives Innovation: A Case Study of Scholarly Publishing in the Digital World

Article published in the Michigan State Law Review

The Injunction Function: How and Why Courts Secure Property Rights in Patents

This Essay addresses one aspect of this legal and policy debate concerning remedies in patent law: how and why courts presumptively secured patent owners with injunctions against ongoing or willful infringements of their property rights. Prompted by the United States Supreme Court’s 2006 decision in eBay v. MercExchange, which created a new four-factor test for issuing injunctions on a finding of ongoing infringement of a valid patent, there is a growing body of scholarly commentary on the role of injunctive remedies in securing property rights in new technological innovations. Much of this commentary focuses on how eBay has resulted in a significant reduction in availability of injunctive remedies for patent infringements, especially in the context of patents on standardized technologies, such as standard essential patents covering WiFi or 5G telecommunications technologies in mobile devices. This Essay builds upon this scholarly work by addressing more generally the legal and policy function of injunctive remedies in patent law, detailing newly identified primary sources in historical caselaw that courts presumptively secured to patent owners an injunction to redress ongoing or willful infringements of their property. The Essay proceeds as follows. First, it summarizes the 2006 eBay decision and how it led to courts significantly reducing injunctions as a remedy for ongoing or willful infringement of valid patents. It describes how eBay changed the legal doctrine for issuing injunctions from a presumptive remedy to a four-factor test and why this change matters. Second, it discusses the nature and function of injunctions as a presumptive remedy in securing property rights, both for landowners and for owners of new and useful inventions. Historical patent decisions confirm the legal doctrine, and, even more importantly, the policy and commercial function of injunctions as essential backstops in the efficient functioning of markets. Of course, an essay cannot address every legal and policy issue in the historical cases and in the economic and philosophical literature. The contribution here is narrow but important: it confirms that eBay indeed changed remedies doctrine in patent law, and that the resulting reduction in injunctions undermines the function of these property rights in spurring economic activities in the U.S. innovation economy

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

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