Patent 'Privilege' in Historical Context

In "Who Cares What Thomas Jefferson Thought about Patents? Reevaluating the Patent 'Privilege' in Historical Context," Adam Mossoff gives his views on why the Jeffersonian story of patent law, which associates American patent system with earlier English royal monopoly privileges, "is an historical myth."According to Mossoff, the appeal of the Jeffersonian story of patent law draws upon the modern English language where the term "privilege is an antonym of "right.""

However, in the eighteenth and nineteenth centuries, "privilege" was a term of art that referred to several distinct types of legal rights. And, in "an era dominated by the labor theory of property and social contract doctrine of natural rights philosophy," he writes, "patents indeed were privileges—civil rights securing property rights."The only official, public document in which a Founder expressly discussed patents is The Federalist Paper No. 43 by James Madison in 1788:
The utility of this power will scarcely be questioned. The copy-right of authorshas been solemnly adjudged in Great Britain, to be a right at common law. Theright to useful inventions, seems with equal reason to belong to the inventors.The public good fully coincides in both cases with the claims of individuals.The states cannot separately make effectual provision for either of the cases,and most of them have anticipated the decision of this point by laws passed atthe instance of congress. According to Mossoff, by the late eighteenth century, it was well known that these "common law rights" were tantamount to natural rights.

In his view, Without first understanding the definition of privileges as civil rightsjustified by the same policies as natural rights—such as Madison’s reference topatents as justified 'with equal reason' as the labor-theory of common-lawcopyright—this important historical justification for patents is lost on modernreaders. Why should we care about the intellectual history of American patent law? First, if patentee's reasonable expectations are to be informed by history, then Mossoff beleives that it behooves lawyers and jurists to better understand the nature of these expectations and their supporting policy justifications.

Second, he warns scholars and lawyers to be careful of using bad history as a substitute for careful normative policy arguments: For instance, Lessig’s critique that the modern Court contradicts its own"long history" in limiting patent and copyright is wrong, as is the historicalassumption in the complaint today that patents and other intellectual propertyrights are being "propertized." The expansion in patent rights todayis in accord with the similarly expansive development in patent rights under theguiding influence of natural rights philosophy in the early nineteenth century.

Modern developments in patent and copyright law may be criticized on the basisof policy concerns, such as emphasizing monopoly costs or championing the valueof the public domain, but invocations of history cannot serve as a proxy forsuch arguments. Perhaps Don Banner put it best when he asked his patent law students "How can you have a monopoly on something that['s novel, and therefore] never existed [in the market]."

Rodney D. Ryder