Cornell Law Review Volume 92 Issue 5

Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent “Privilege” in Historical Context

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 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 doing so, 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 nearly universal misuse of history by lawyers and scholars who rely on Jefferson as an undisputed historical authority to critique 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.


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